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CIHM/ICMH 
Microfiche 
ries. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  Institut  canadien  de  microreproductions  historiques 

1980 


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6 

I 


THE 


TREATY  OF   WASHINGTON: 


ITS 


NEGOTIATION,  EXECUTION, 


AND    THE 


DISCUSSIONS  RELATING  THERETO. 


BY 


CALEB  GUSHING. 


■Ja 


NEW     YORK: 
HAPx'PIR     S:    BROTHERS,    PrBLisuERS, 

FRANKLIN   SQUARE. 
"  1873. 


INSCRTBED, 


IN  TESTIMONY   OF  I'ROFOUND   RESPECT, 


.  -1 


TO 

COUNT  FREDERIC  SCLOl'IS,  OF  SALERANO, 


MINISTER  OF  STATE, 


SENATOR  OF  THE  KINGDOM  OF  ITALY. 


i 


'4 


CONTENTS 


i 


I'lIAPTEIi   I.    INTROnrCTlUN !' 

("IIAI'TKR   11.    .{/.ABAMA    CLAIMS I'' 

('(iiuliict  of  (Ireat  Hritiiiii  tuward  ilii'  Inited  States  during,'  the  late 

Civil  War i'> 

Negotiations  by  Mr.  yeward 1 " 

rolicy  of  President  (Jraiit ' H 

Overtures  l)y  (ireat  l?ritain 20 

St  })idatioiis  respecting  the  Aldhtumi  Claims .  21 

Arrangements  of  Arhitration '-'(I 

The  Amerieau  Case ;iO 

Hxi)lanation  of  Ohjcctions  to  the  American  Case •'':'> 

Agitation  respecting  the  Nation  1  (  hums .'M 

Cause  of  this  Agitation .'V.i 

Discussion  hetween  the  two  Governments 12 

English  Misconception  of  American  Sentiment \^ 

Attitude  of  the  American  Government ^>- 

Action  of  the  American  Agent  and  Counsel ■"»•"> 

Presentation  of  Counter-Cases '">" 


VI  CONTKNTS. 

i'A(.i: 

NegotiiUions  fur  a  Si'i)i)lcnieiital  Treaty (Jli 

rrcscntatiijii  of  Arguments  fur  tlie  United  States <i(j 

Decisiun  of  the  Arliitrators  resi)ec'tiiig  National  Losses Olt 

.Seat  of  tiie  Arbitration 74 

C^ouut  Frederic  Sclopis 77 

Mr.  Stu;mi)fli 80 

Viscount  of  Itajula 8-t 

Sir  Alexander  (  ockhurn 8(1 

Mr.  ("'harles  Francis  Adams !);5 

Secretary  of  the  Tril)unal !»4 

^vgents  and  ( 'ounsel 'Jl 

Kftbrts  of  the  liritish  (iovernmcnt  to  obtain   IJeargmneiit !»'•• 

Rules  concerning  the  Conferences  of  the  'Irilmnal IDC 

Discussions  of  the  Tribunal Il»'.» 

Sir  Alexander  Cockburn's  Call  for  lieargunient Ill 

Case  of  the  Florida  decided II! 

Special  Arguments  01  dertd  on  Certain  Points 117 

Case  of  the  Alahinna  decided 118 

Case  of  the  Shenandoah  decided 1 20 

The  Speci  \\  /vrguments 121 

Question  of  I  )amages 124 

P'inal  Judgment  of  the  Tribunal 12") 

Announcement  of  the  Decision 1 2(1 

Conduct  of  the  British  Arbitrator 128 


CONTENTS.  vii 

I'AOK 

Sir  Alexander  C<Kkl)iirirs  Keiisoiis  for  Dissent l-f< 

Keview  of  Sir  Aloxaiuler  ( 'od^lmrn's  " Heasons " 1 .",(» 

Opinions  uf  llie  otiicr  Arbitrators 1  J',i 

Ixcview  uf  tile  Decision  o['  tlie  Tril>unul  <•     National   Losses Ifi.'! 

Decision  as  to  Private  Losses ir»'.i 

Klfei't  of  tlie  Award lOt 

Validity  of  tlio  Award 1(17 

Filibnster  ( )i)jections 177 

Sale  of  Anns  not  aifected  l>y  the  Treaty  or  tlie  AwanI 180 

Question  of  Sui)i)lies  of  Coal l.'^o 

What  the  I'nited  States  have  gained  by  tlu;  Award ISl 

CllAlTKK    IIL    MISCELLAXEOL'S   CLAIMS 1S7 

Treaty  Provisions 187 

Private  Claims  on  ( iovernmeiits 1 81' 

Usefulness  of  Mixed  Commissions 1  i'l' 

Other  Forms  of  Arbitration P''"- 

Tendency  of  Reason  and  Justice  to  jjrevail  over  Force 1!»7 

Tlieory  of  Arbitration -'"<» 

Wisdom  of  the  present  Mixed  Comnussioii -01 

CHAPTER  IV.   THE  NORTIIWESTEllS  liOiNUAnY-LIXE. .  L'lKJ 

Provisions  of  the  Treaty 20.3 

History  of  the  Question 20.") 

The  Award 221 


vili  tONTI':NTS. 

v\<,t'. 

CI  I A  iTKii  V.  /7//v  Fisin:iiii:s jiio 

History  nf  \\\v.  (iiK'stion 'JL'O 

I'rMvisioiis  of  the  'I'reaty  of  Wii.sliiiif^ton L'.'IT 

I'rolmlilcr  Anioniu  ol'  Iiulcinnity l.';V,» 

ClIAl'TKK  VI.  CoMMKIiClM.  I STFJiCi H' l!Si:  .yx D  TIIAXS- 

I'on /•  1  y/o.v •-'» ! 

Treaty   l'rovisi(jiis L'4I 

Kelation  of  tlie  IJritisli   I'rovincos  to  the  IJiitcil  States L'I7 

Ari'ENDIX.  —  77//;   TREA  TV   OF  \VA .S7//A7; '/'O.V l':.? 

TIIJ::  JjJXl6luN  AMj  a  \\A 111) 275 


T II K 


TREATY  OF  WASHINGTON. 


CIIAITER  I. 
IXTKOl/rCTION. 

TiiK  Tkkaty  of  Wasiiingtox,  whether  it  l.e  reg.'ird- 
ed  ill  tile  light  '  '  'ts  general  spirit  and  object,  of  its 
partiiHilar  stipu  v^iis,  or  of  its  relation  to  the  high 
coiitraetiiig  parties,  constitutes  one  of  the  most  nota- 
l)le  and  interesting  of  all  the  great  diplon.atic  acts  of 
the  present  age. 

It  disposes,  in  forty-thi'ee  articles,  of  five  dilfereiit 
subjects  of  controversy  l)etween  Great  Britain  and 
the  United  States,  two  of  them  European  or  ini])e!'ial, 
three  American  or  colonial,  and  some  of  them  of  such 
nature  as  most  imminently  to  imperil  the  precious 
peace  of  the  two  great  English-speaking  nations. 

Indeed,  several  of  these  objects  of  controversy  arfe 
questions  coeval  with  the  national  existence  of  the 
United  States,  and  which,  if  lost  sight  of  occasionally 
ii:.  the  midst  of  other  pre-occupations  of  peace  or  war, 
yet  continually  came  to  the  surface  again  from  time 


10 


THE   TKEATY    OF   WASiIINGTON. 


to  time  to  vex  and  disturb  the  good  understiinding 
of  botli  Governments.  Others  of  the  questions,  al- 
though of  more  modern  date,  incidents  of  our  late 
Civil  War,  were  all  the  more  irritating,  as  being  fresh 
wounds  to  the  sensibility  of  the  people  of  the  United 
States. 

If,  to  all  these  considerations,  be  added  the  fact  that 
negotiation  after  negotiation  respecting  these  ques- 
tions had  failed  to  resolve  them  in  a  satistactory 
manner,  it  will  be  readily  seen  how  great  was  the 
dii)lomatic  tiiumph  achieved  by  the  Treaty  of  Wash- 
ington. 

It  required  peculiar  inducements  and  agencies  to 
accomplish  this  great  result. 

Prominent  among  the  inducements  were  the  pacific 
spirit  of  the  President  of  the  United  States  and  the 
Queen  of  Great  Britain,  and  of  their  respective  Cabi- 
nets, and  the  sincere  and  heartfelt  desire  of  a  great 
majority  of  the  people  of  both  countries  that  no 
shadow  of  offense  should  be  allowed  any  longer  to 
limxer  on  the  face  of  their  international  relations. 

Great  Britain,  it  is  but  just  to  her  to  say,  if  not  con- 
fessedly conscious  of  wrong,  yet,  as  being  the  party  to 
whom  wrong  was  imputed,  did  honorably  and  wisely 
make  the  decisive  advance  toward  reconciliation,  by 
consenting  to  dispatch  five  Commissioners  to  Wash- 
ington, there,  under  the  eye  of  the  President,  to  treat 
with  five  Commissioners  on  behalf  of  the  United 
States. 

Diplomatic  congresses  have  assembled  on  previous 
occasions  to  terminate  the  s^reat  wars  of  Europe,  or 


J, 
ft 

•f. 


INTHODUCTIUN. 


11 


to  maintain  and  consolidate  peace  in  America.  And 
conferences,  like  those  of  Vienna,  of  Aix-la-Cliapelle, 
of  Paris,  may  have  embraced  the  representation  and 
settled  the  interests  of  a  larger  number  of  nations;  l)ut 
they  did  not  consist  of  higher  personages,  nor  did 
they  treat  of  larger  matters  than  did  the  conference 
uf  Washington. 

On  the  part  of  the  United  States  were  five  persons, 
— Hamilton  Fish,  Koljert  C.  Schenck,  Samuel  Nekon, 
Ebenezer  liockwood  Iloar,  and  George  11.  Williams, — 
eminently  fit  representatives  of  the  di})lomacy,  the 
bench,  the  bar,  and  the  legislature  of  the  United 
States :  on  the  part  of  Great  Britain,  Earl  De  Grey 
and  Ripon,  President  of  the  Queen's  Council ;  Sir  Staf 
ford  North  cote,  ex-Minister  and  actual  Member  of  the 
House  of  Commons ;  Sir  Edward  Thornton,  the  uni- 
versally respected  British  Minister  at  Washington ; 
Sir  John  Macdonald,  the  able  and  eloquent  Premier  of 
the  Canadian  Dominion  ;  and,  in  revival  of  the  good 
old  time,  when  learning  was  equal  to  any  other  title 
of  public  honor,  the  Universities  in  the  person  of 
Professor  Mountague  Bernard. 

With  persons  of  such  distinction  and  character,  it 
was  morally  impossible  that  the  negotiation  should 
fiiil :  the  neixotiators  were  hound  to  succeed.  Their 
reputations,  not  less  than  the  honor  of  their  respective 
countries,  were  at  stake.  The  circumstances  involved 
moral  coercion,  more  potent  than  physical  force.  The 
issues  of  peace  and  of  war  were  in  the  hands  of  those 
ten  personages.  They  were  to  illustrate  the  eternal 
truth  that,  out  of  the  difterences  of  nations,  competent 


12 


THE   TREATY   OF   WASIIINCITUN. 


statesmen  evolve  ])eac'e;  arid  tliat  it  is  only  by  the 
incompetency  of  statesmen  of  one  side  ortlie  otliei', — 
tliat  is,  tlieir  ignorance,  their  ])assion,  tljeii'  prejudice, 
their  ^vant  of  forecast,  or  their  willfully  aggressive 
ambition, — that  the  nnspeakable  calamities  of  wai'  are 
(;ver  thrust  on  the  suffering  world.  Neither  Mr.  Fish 
nor  Earl  De  Crrey,  nor  their  respective  associates, 
could  afford  to  take  on  their  consciences  the  respon- 
sibility, or  on  their  characters  tlie  shame,  of  the  non- 
success  on  this  occasion  of  a  last  effort  to  renovate 
and  re-establish  in  perpetiuty  relations  of  cordial 
tViendsliip  between  Great  Britain  and  the  United 
States.  And,  if  they 'needed  other  impulse  to  right 
conclusion,  that  was  given  by  the  wise  aitd  firm  direc- 
tion of  tlie  President,  here  in  person,  and  of  the  Queen, 
here  in  etfect  through  the  means  of  daily  telegraphic 
communication. 

IIaj)i)ily  for  the  peace  of  the  two  countries  and  for 
the  welfare  of  the  world,  the  negotiators  proved  equal 
to  the  emergency,  in  coui'age  as  well  as  in  statesman- 
ship. Tlie  (jovernment  and  the  people  of  (Ireat  Brit- 
ain had  learned  to  regret  sincerely  the  occuri'ence  of 
the  acts  or  lacts  which  had  given  such  deep  offense, 
and  which  had  done  such  serious  injury,  to  the  United 
States ;  and,  moreover,  the  (lovernment  and  peoide  of 
this  country  had  come  to  desii'e,  with  ecjual  sincerity, 
that  some  honorable  solution  of  the  existino-  ditHcul- 
ties  might  be  found,  so  as  to  leave  room  for  the  un- 
obstructed action  here  of  the  prevailing  natural  tend- 
ency toward  unreserved  intellectual  and  commercial 
association   ^vith  (i-reat  Britain.     Material  interests, 


..■Ay 

i 


\&\ 


INTRODUCTION. 


13 


social  sentiments,  incidental  circumstances,  all  invited 
Ijotli  nations  to  cordial  reunion. 

In  tlie  face  of  many  dilticulties,  the  Conunissiouers. 
on  the  Sth  of  May,  1871,  completed  a  treaty,  ^\■hich 
received  the  prom|)t  ai)proval  of  their  respective 
Governments;  -which  has  2)assed  unscathed  through 
the  severest  ordeal  of  a  temporary  misunderstanding 
l)etween  the  two  Governments  respecting  the  con- 
struction of  some  of  its  provisions ;  which  has  already 
attained  the  dignity  of  a  monumental  act  in  the  esti- 
mation of  mankind ;  and  which  is  destined  to  occup}' 
hereafter  a  lofty  place  in  the  history  of  the  diplomacy 
and  the  international  jurisj^rudence  of  Europe  and 
Amei'ica. 

Coming  now  to  the  analysis  of  thi^,  tr(;;aty,  we  find 
that  Articles  I.  to  XL  inclusive  make  provisions  for 
tlie  settlement  by  arbitration  of  the  injuries  alleged 
to  have  been  suffered  by  the  United  States  in  couse- 
(pience  of  the  fitting  out,  arming,  or  ecpiipping,  in  the 
ports  of  Gi'eat  Britain,  of  Confederate  cruisers  to 
make  war  on  the  United  States. 

Ai'ticles  XII.  to  XYII.  inclusive  make  provision  to 
settle,  by  means  of  a  mixed  Commission,  all  claims  on 
either  side  for  injuries  by  either  Government  to  the  cit- 
izens of  the  other  during  the  late  Civil  War,  other  than 
claims  o-rowincj  out  of  the  acts  of  Confederate  cruisers 
disposed  of  by  the  previous  articles  of  the  Ti'eaty. 

Articles  XVIII.  to  XXV.  inclusive  contain  provi- 
sions for  the  permanent  regulation  of  the  coast  fish- 
eries on  the  Atlantic  shores  of  the  United  States  and 
of  the  British  Provinces  of  Quebec,  Xova  Scotia,  and 


14 


THE  TREATY   UF   WAyillNGTON. 


■'I 


New  Brunswick,  and  the  Colony  of  Prince  Edward's 
Island  1  including  the  Colony  of  Newfoundhuid  by 

Article  XXXII.  |. 

Articles  XXVI.  to  XXXIIl.  inclusive  provide  for 
the  reciprocal  free  navigation  of  certain  rivers,  includ- 
'm<r  the  River  St.  Lawrence ;  for  the  common  use  of 
certain  canals  in  the  CJanadian  Dominion  and  in  the 
United  States ;  for  the  free  navigation  of  Lake  Mich- 
igan ;  for  reciprocal  free  transit  across  the  territory 
either  of  the  United  States  or  of  the  Canadian  Do- 
minion, as  the  case  may  be:  the  whole,  subject  to 
legislative  provisions  hereafter  to  b.e  enneted  by  the 
several  Governments. 

Articles  XXXIV.  to  XLIL  provide  for  determining 
by  arbitration  which  of  two  ditterent  channels  be- 
tween Vancouver's  Island  and  the  main-land  consti- 
tutes the  true  boundary -line  in  that  region  of  the 
territories  of  the  United  States  and  Great  Britain.  ^ 

Each  of  these  five  distinct  classes  of  questions  will 
receive  separate  consideration. 


A 


ALABAMA  CLAIMS. 


15 


fci 


CHAPTER  11. 


ALABAMA   CLAIMS. 


CONDUCT  OF  GREAT  BRITAIN  TOWARD  THE  UNITED  STATES 
DURING  THE  LATE  CIVIL  WAR. 

At  the  conclusion  of  tlie  Civil  War,  intense  feeling 
of  indignation  against  Great  Britain  pervaded  the 
minds  of  the  Government  and  Congress  of  the  United 
States,  and  of  the  people  of  those  of  the  States  which 
had  devoted  themselves  to  maintaining  in  arms  the 
integrity  of  the  Union  against  the  hostile  efforts  of 
the  Southern  Confederation. 

We  charged  and  we  believed  that  Great  Britain 
and  her  Colonies  had  been  the  arsenal,  the  navy-yard, 
and  the  treasury  of  the  Confederates. 

We  charged  and  we  believed  that  Confederate 
cruisers,  which  had  depredated  largely  on  our  ship- 
ping and  maritime  commerce,  never  could  have  taken 
and  never  held  the  sea,  but  for  the  partiality  and 
gross  negligence  of  the  British  Government. 

We  charged  and  we  believed  that  but  for  the  pre- 
mature recognition  of  the  belligerence  of  the  Confed- 
erates by  Great  Britain,  and  the  direct  aid  or  sup- 
plies which  wee  subsequently  furnished  to  them  in 
British  ports,  the  insurrection  in  the  Southern  States 
never  would  have  assumed,  or  could  not  have  retained, 


16 


THE  TREATY  UF   WASillNGTUN. 


those  gigantic  proportions,  wliicb  served  to  gender  it 
so  costly  of  Ijlood  and  of  treasure  to  tlie  whole  Union, 
and  so  specially  disastrous  to  the  Southern  States 

themselves. 

We  charged  and  we  believed  that,  in  ail  this,  Gi'eat 
Britain,  through  her  Government,  had  disregarded 
the  obligations  of  neutrality  imposed  on  her  by  the 
law  of  nations  to  such  manifest  degree  as  to  have  af- 
forded to  the  United  States  just  and  ample  cause  of 

war. 

The  United  States,  through  all  these  events,  with 
William  XL  Seward,  as  Secretary  of  State,  and  Charles 
Francis  Adams,  Minister  at  London,  had  not  failed  to 
address  continual  remonstrances  to  the  British  Gov- 
ernment, demanding  reparation  for  past  wrong  and 
the  cessation  from  continuous  wrong :  which  remon- 
strances did,  in  fact,  at  length  awaken  the  British 
Government  to  grertter  vigilance  in  the  discharge  ot 
its  international  duties,  but  could  not  induce  it  to 
take  any  step  toward  reparation  so  long  as  Earl  Rus- 
sell [then  Lord  John  Russell],  by  whose  negligence  or 
misjudgment  the  injuries  had  happened,  remained  m 
charge  of  the  foreign  affairs  of  the  Government.    That 
state'^sman,  while,  on  more  than  one  occasion,  expressly 
admitting  the  wrong  done  to  the  United  States,  still 
persisted,  with  singular  obtuseness  or  narrowness  of 
mind,  in  maintaining  that  the  lionor  of  England  would 
not  permit  her  to  make  any  reparation  to  the  United 

States. 

Never,  in  the  history  of  nations,  has  an  occasion  ex- 
isted where  a  powerful  people,  smarting  under  the 


I 


..? 


I 


ALABAMA   CLAIMS. 


17 


consciousness  of  injury,  manifested  greater  magnanini- 
ity  than  was  dis])]ayed  ia  that  emergency  by  the 
United  States. 

We  had  on  the  sea  Jiundreds  of  ships  of  war  or  of 
transport;  we  had  on  land  liundreds  of  tliousands  of 
veteran  soldiers  under  arms ;  ^ve  had  officers  of  land 
and  sea,  the  combatants  in  a  hundred  Ijattles :  all  this 
,  vast  force  of  war  was  in  a  condition  to  l;e  launched 
as  a  thunderljolt  at  any  enemy;  and,  in  the  present 
case,  the  possessions  of  that  enemy,  whether  conti- 
nental or  insular,  lay  at  our  very  door  in  tempting 
helplessness. 

But  neither  the  Government  and  people  of  the 
United  .States,  nay,  nor  their  laurel-ci'owned  Gener- 
als and  Admirals,  desired  war  as  a  choice,  nor  would 
accept  it  but  as  a  necessity;  and  they  elected  to  con- 
tinue to  negotiate  with  Great  Britain,  and  to  do  what 
no  great  European  State  has  ev-j  done  under  like  cir- 
cumstances,—that  is,  to  disarm  absolutely,  and  make 
thorough  trial  of  the  experiment  of  generous  forbear- 
ance before  having  recourse  to  the  dread  extremity 
of  vengeful  hostilities  against  Great  Britain. 


NEGOTIATIOXS  BY  MR.  SEWARD. 

•  The  event  justified  our  conduct.  To  the  prejudiced 
and  impracticable  Lord  Eussell,  there  succeeded  in 
charge  of  the  foreign  affairs  of  the  British  Govern- 
ment,  first.  Lord  Stanley  [noAv  the  Earl  of  Derby], 
and  then  the  Earl  of  Clarendon,  who,  more  wise  and 
just  than  he,  successively  entered  upon  negotiations 
with  the  United  States  on  that  very  basis  of  arbitra- 

B 


18 


Tin:   TKKATV   OF    WASIIINCJTOX. 


III 


turn  wJiicli  lie  liad  so  pei'cihptorily  rc'j(;ct<Hl,1)ut  Avincii 
Mr.  Sewurd  jxTsistcd  in  asscj-tiiig  as  wise  in  itself  and 
lionoi'aM<3  to  !)otli  (Governments, 

'J'hose  negotiations  failed.  Bnt  the  I'ejeetion  hy 
the  Senai,e  of  the  Chu'endon- Johnson  Treaty,  with 
Mr.  Sumner's  commentaiy  thereon,  if  it  had  tlii;  a])- 
parent  etreet,  at  first,  of  widening  the  Ijreaeh  between 
the  two  countries  by  the  irritation  it  produced  in  Kn- 
gland,  yet  idtimately  had  the  o])posite  eflect  by  forc- 
ing on  public  attention  there  a  moro  genei'al  and 
clearer  ])erception  of  the  wrong  which  had  been  done 
to  the  United  States. 


III 


rOLICY    OF   rRKSIDEXT    (IRANT. 

At  this  stage  of  the  question,  President  Grant  came 
into  office;  and  he  and  his  advisers  seem  to  have  well 
judged  that  it  sufficed  for  him,  after  giving  ex[)res- 
sion  fully  and  distinctly  to  his  own  view  of  the 
(Questions  at  issue,  there  to  pause  and  "wait  for  the 
tranquillization  of  opinion  in  England,  and  the  prob- 
able initiation  of  new  negotiations  by  the  British 
Government. 

It  happened  as  the  President  anticipated, and  with 
attendant  circumstances  of  peculiar  interest  to  the 
United  States. 

During  the  late  w^ar  between  Germany  and  France, 
the  condition  of  Europe  was  such  as  to  induce  the 
British  Ministers  to  take  into  consideration  the  for- 
eign relations  of  Great  Britain ;  and,  as  Lord  Gran- 
ville, the  British  Minister  of  Foreign  Aflairs,  has  him- 
self stated  in  the  House  oi  Lords,  they  saw  cause  to 


ALABAMA   CLAIMS. 


10 


110 

he 
•ob- 
;isli 

itli 
tlie 

nice, 

tlie 

for- 

iran- 

liun- 

se  to 


l(.(»k  with  soH('itu(h'  on  tlic  uneasy  rchitiniis  of  tlie 
J'rilisli  (i()V(  I'unieiit  Avith  tlie  Tnited  States,  and  the 
iiieouvciiieUv  (,'  tliei'eot'  in  case  of  possible  e()inj)lica- 
tioiis  in  Kiiro])('.  Thus  impelled,  tlie  (ioveriinieiit 
dispatched  to  \\'ashinin^t(Mi  a  gentleman,  who  enjoyed 
the  confidence  of  ])oth  Cabinets,  Sir  John  Rose,  to  as- 
certain whethgr  overtures  for  re-o])(!ning  negotiations 
would  he  received  by  the  President  in  s])irit  and 
terms  acceptal  'e  to  Great  l^ritain. 

It  was  the  second  time,  in  the  present  generation, 
that  the  foreign  ]»olicy  of  England  had  ])een  directed 
by  a  sense  of  the  imjwrtanvc  to  lier  of  maintaining 
good  relations  Avith  the  United  States;  foi",  by  argu- 
ing from  that  ])oint,  France,  at  the  opening  of  Avar 
with  Prussia,  induced  the  British  (Tovernment  to  de- 
sist from  those  excessive  belligerent  pretensions  to 
the  prejudice  of  neutrals,  which  in  former  tir.^.es  haa 
served  to  embroil  her  with  both  France  atid  the  Unit- 
ed States. 

There  is  another  fact,  which,  in  my  opinion,  powei'- 
fully  contributed  to  induce  this  overture  on  the  part 
of  the  British  Government,  although  it  was  not  spok- 
en of  in  this  connection  by  Lord  (rranville.  I  allude 
to  the  President's  recommendation  to  Congress  to  ap- 
point a  commission  to  audit  the  claims  of  American 
citizens  on  Great  Britain  o-rowino;  out  of  the  acts  of 
Confederate  cruisers,  in  view  of  havins;  them  assumed 
by  the  Government  of  the  United  States.  In  this  in- 
cident there  was  matter  of  grave  and  serious  reflection 
to  Great  Britain. 

On  arriving  at  Washington,  Sir  John  Rose  found 


If.. 


20 


'rili;   THKATV   OF   WAS1IIN(JTUX. 


tlio  United  States  dis])()sed  to  meet  -witli  perfect  cor- 
respondence of  good-will  the  adviinces  of  the  British 
Government. 


'i 


OVETITrKES  BY   GREAT   BRITAIX. 

Accordingly,  on  the  20th  of  January,  1871,  the 
British  (rovernmcnt,  through  Sir  Edward  Thornton, 
formally  j>ro])osed  to  the  Amei'ican  Government  the 
appointment  of  a  joint  High  Commission  to  hold  its 
sessions  at  AVashington,  and  there  devise  means  to 
settle  the  vaj'ious  pending  questions  bet\veen  the  two 
Governments  afl'ecting  the  Bjitish  possessions  in 
North  America. 

To  this  overture  Mr.  Fish  re])lied  that  the  President 
would  Avith  ])leasure  ap])oint,as  invited,  Commission- 
ers on  the  i)art  of  the  United  States,  provided  the  de- 
libei'ations  of  the  Conunissioners  should  Le  extended 
to  other  differences, — that  is  to  say,  to  include  the  dif 
ferences  cjrowinc;  out  of  incidents  of  the  late  Civil 
War:  without  which,  in  his  opinion,  the  proposed 
Commission  would  fail  to  establish  those  permanent 
relations  of  sincere  and  substantial  friendship  between 
the  two  countries  which  he,  in  common  with  the 
Queen,  desired  to  have  prevail. 

The  British  Government  promptly  accepted  this 
proposal  for  enlarging  the  sphere  of  the  negotiation, 
with  the  result,  as  we  have  already  seen,  of  the  con- 
clusion of  the  Treaty  of  Washington. 


1 


ALAI5A.MA    CLAIMS. 


LU 


I 


:  \ 

is 


'■^'1'. 
'••'.% 


S'l'irn^ATIONS    KKSI'KCTINc;    Till-:    AI.AHA.MA    CLAIMS. 

The  Treaty  l)eii;ins  ])V  deseiibiiif^  tli(f  (litl'ei'enees, 
wlileli  ^^■e  ai'e  now  eoiisidering,  as  (liflereiices  "gi'ow- 
iiii^  out  nt'tlie  aets  coinuiitted  hy  tins  sevt  ral  vessels, 
whicli  liave  ^^Iveii  rise  to  the  elainis  generieally  know  ii 
as  tlie  AIa/)(ini<(  Claims;''  wliieh  are  i'lirtlier  de- 
sei'Ilx'd  as  "all  the  said  claims  growing  out  of  aets 
eoiiiiuitted  l>y  the  aforesaid  vessels,  and  generieally 
kiK)\\'n  as  tlie  Aluhnnm  Cldinisy 

Note  \\\[\i  the  sui»jeet  of  dilferenee  is  stated  in  tei'iiis 
of  absolute,  although  speeitic,  universality,  as  alJ  the 
claims  on  the  ])art  of  the  Tnited  States  growing  out 
of  the  acts  of  certain  vessels.  Xo  exception  is  made 
of  any  particular  claims  growing  out  of  tliose  aets. 
And  reference  is  not  mad(!  to  certa/ii  admitted  chiims 
l)y  the  I^ritish  (xoverninent:  on  the  contraiy,  it  is  ex- 
pressly declared  in  the  Treaty  that  the  "  complaints" 
and  "chiims"  of  the  United  States,  witliout  any  dis- 
crimination between  them,  "  arii  not  admitted  by  tlie 
British  (rovernment." 

At  the  same  time,  tlie  Bi'itisli  Commissioners,  by 
authority  of  the  Queen,  express,  "  in  a  friendly  spirit, 
the  regret  felt  by  Her  Majesty's  Government  tor  the 
escape,  under  whatever  circumstances,  of  the  Ahihaiua 
and  other  vessels  from  British  ports,  and  for  the  dep- 
redations committed  by  those  vessels." 

Whereupon,  "  in  order  to  remove  and  adjust  all 
complaints  and  claims  on  the  part  of  the  United 
States,  and  to  provide  for  the  speedy  settlement  of 
such  claims,"  the  conti'acting  parties  agree  that  all 


c^ 


t>o 


Tin:   TKEATV   OF   WASllINdTOX. 


the  said  claims,  gr(twl'ig  out  of  acts  coiiiinittod  by  tlic 
aforesaid  vessels,  and  geiierieally  known  as  the  .■l^^ 
htnna  Claims,  shall  he  i-efened  to  .a  'IVihunal  of  Ar- 
bitration to  ])e  eomjMtsed  of  five  Arl)iti"atoi"s,  njt])oint- 
ed  in  the  follow  ing  manner, — namely,  one  by  the  Pres- 
ident of  the  United  States,  and  one  l)y  the  (^)ueen  of 
the  United  Kingdom,  with  re(jUest  to  tht^  King  of 
Italy,  the  Pi'esiih'nt  of  the  Swiss  Confederation,  and 
the  Km]w'i'or  of  Pnvi/il,  eaeh  to  nami;  an  Arl)itrator; 
and,  on  the  omission  of  eitlier  <>f  those  j)ersonages  to 
act,  then  ^\  ith  a  like  request  to  the  King  of  Sweden 
and  Norway. 

The  Treaty  fui'ther  provides  that  the  iirl)itrators 
shall  meet  at  Geneva,  in  >witzerland,  at  the  earli(!st 
convenient  day  after  they  shall  have  been  named,  and 
shall  proceed  im])artially  and  cai'efully  to  examine 
and  decide  all  (juestions  Avhi(;li  shall  be  laid  before 
them  on  the  pai"t  of  either  (lovei'nment. 

In  decidinjj-  the  matters  submitted  to  the  Arbitra- 

CD 

tors,  it  is  provided  that  they  shall  be  governed  by 
certain  rules,  which  are  agreed  upon  l)y  the  parties  as 
rules  to  be  taken  as  ap2)licable  to  the  case,  and  T)y 
such  principles  of  international  law,  not  inconsistent 
therewith,  as  the  Arbitrators  shall  determine  to  have 
been  ai)])licable  to  the  case,  which  rules  are  as  fol- 
lows : 

"  A  neutral  Government  is  hound — 

"  First,  to  use  duo  dilii::ence  to  ]irevent  the  fitting  out,  arni- 
inij,  or  e(jui]>pin2^,  within  its  jurisdiction,  of  any  vessel  Avliieh  it 
has  reasonahlo  ground  to  helieve  is  inteuiled  to  cruise  or  to 
carry  on  war  against  a  Power  with  MJiieh  it  is  at  peace;  and 
also  to  use  like  diligence  to  j)revent  the  departure  from  its  ju- 


I 


ALAHAMA    CLAIMS. 


28 


I'ixlictinii  of  liny  vessel  iiiU'iiiK-il  to  ci'iiisc  or  can-y  <'ii  war  as 
alioNc,  siicli  vi's>cl  liaviiiL;  Ix'cri  specially  a(la|)le<l,  in  w  liule  or 
ill  part,  within  sueli  Jurisdiction,  to  warlike  use. 

"  Seconijly,  not  to  permit  or  sutler  eilliei"  helliLCcrent  to  make 
use  ol'its  ports  v)r  waters  as  tlio  base  ofnaval  operations  ai^aiust 
tiie  other,  or  lor  the  purpose  of  the  renewal  or  au^n./iitation 
of  niilitar\  supplies  or  arms,  or  the  r^'cruitment  of  men. 

"Tliiidly,  t(»  exercise  due  dilii^fence  in  its  own  poi'ts  and  wa- 
ters, and,  as  {)  all  jK'rsons  within  its  Jurisdiction,  to  prevent 
any  violation  of  the  foregoing  uhligations  and  duties." 


US 


•m- 
1  it 

to 
md 

iu- 


( I  feat  IJrituiii,  it  is  added  in  tlu;  Treaty  l)y  way  of 
explaiiat  11)11,  can  not  assent  to  tlu;  t'()reu;()!ng  rules  as 
a  statement  of  })rinei])li's  of  international  law  ^^l^l''ll 
'Were  actually  in  force  at  the  time  Avlien  the  claims  in 
qtiestion  arose;  Init,  in  order  to  evince  her  desire  of 
streno;thenini.,^  the  friendly  relations  ljet\\eeu  the  two 
countries,  and  of  making  sa^^isfactory  provision  for  the 
future,  she  agrees  that,  in  deciding  the  ([uestions  aris- 
ing out  of  such  claims,  the  Arbitrators  should  assiuiit 
that  she  had  undertaken  to  act  upon  the  i>rinci2)les 
set  forth  in  these  rules. 

And  the  Parties  proceed  to  stijMilate  to  observe 
these  rules  as  between  themselves  in  the  future,  and 
to  briiiijj  them  to  the  knowledii:e  of  other  maritime 
Powers,  and  to  invite  the  latter  to  accede  thereto. 

Til  respect  of  procedure,  the  Treaty  provides  that 
each  of  the  two  Parties  shaU  name  one  person  to  at- 
tend the  Tribunal  as  its  igent  or  representative ; 
that  the  written  or  printed  case  of  each  of  the  two 
Parties,  accompanied  by  the  documents,  the  official 
correspondence,  and  other  evidence  on  which  each 
relies,  shall  be  delivered  in  duplicate  to  each  of  the 


24 


THE   TKEATY   OF   WASHINGTON. 


Arbitrators  and  to  tlio  agent  of  tLe  other  Party,  as 
soon  as  may  be  after  the  oi'ganization  of  the  Tril)u- 
nal ;  that  within  four  months  after  the  delivery  on 
both  sides  of  the  written  or  printed  case,  either  I*arty 
may,  in  like  manner,  deliver  in  du})lieate  to  each  of 
the  said  Arbitrators  and  to  the  a^-ent  of  the  other 
Party  a  counter-case,  and  additional  documents,  cor- 
res])ondence,  and  evidence,  in  nply  to  the  case,  docu- 
ments, correspondence,  and  evidence  so  ])resented  by 
the  other  Party;  that  i,t  shall  be  the  duty  of  the 
agent  of  each  Party,  \vitliin  two  months  aft(3r  the  ex- 
pirat'on  of  the  time  limited  for  the  delivery  of  the 
counter-case  on  both  sides,  to  deliver  in  du]-«licate  to 
each  of  the  said  Arbitrators  and  to  the  assent  of  the 
other  Party  a  written  or  printed  argument  showing 
the  points  and  referring  to  the  evidence  upon  wlii^li 
his  Government  relies, 

No  express  provision  tor  the  appointment  of  coun- 
sel appears  in  the  Treaty;  but  they  are  recognized 
in  the  clause  which  declares  that  the  Arbitrators 
may,  if  they  desire  further  elucidation  "svith  regard 
to  any  point,  recpiire  a  written  or  printed  state- 
ment or  argument,  or  oral  argument,  by  counsel  u])on 
it ;  but  in  such  case  the  other  Partv  shall  be  enti- 
tied  to  reply  either  orally  or  in  writing,  as  the  case 
may  be. 

Finally,  with  reference  to  procedure,  it  is  stipu- 
lated that  the  Tril)unal  shall  first  determine  as  to 
each  vessel  separately,  \vheth':'r  Great  Britain  has,  by 
any  act  or  omission,  failed  to  fulfill  any  of  the  duties 
set  forth  in  the  Treaty  rules,  or  recognized  by  the 


ALABAMA   CLAIMS. 


25 


principles  of  international  law  not  inconsistent  with 
siK'li  rules,  and  shall  certify  such  fact  as  to  each  of 
the  said  vessels.  This  decision  shall,  if  possible,  he 
reached  -within  three  months  from  the  close  of  the 
ariji:ument  on  both  sides. 

In  case  the  Tribunal  finds  that  Great  Britain  has 
failed  to  fulfill  any  duty  or  duties  as  aforesaid,  it  may, 
if  it  think  i)roper,  proceed  to  award  a  sum  in  gross 
to  be  paid  by  Great  Britain  to  the  United  States  for 
all  the  claims  referred  to  it ;  and  in  such  case  the 
gross  sum  so  awarded  shall  be  j^aid  in  coin  by  the 
Government  of  Great  Britain  to  the  Government  of 
the  United  States,  at  Washington,  within  twelve 
months  after  the  dr.te  of  the  award. 

In  case  the  Tribunal  finds  that  Great  Britain  has 
failed  to  fulfill  any  duty  or  duties  as  aforesaid,  and 
does  not  award  a  sum  in  gross,  the  Parties  agree  that 
a  Board  of  Assessors  shall  b''  appointed  to  ascertain 
and  letermine  what  claims  are  valid,  and  what 
a'r.ount  or  amounts  shall  be  paid  by  Great  Britain 
to  the  United  States  on  account  of  the  liability  aris- 
ing from  such  fiiilure,  as  to  each  vessel,  according  to 
the  extent  of  such  liability  as  decided  by  the  Arbi- 
trators. This  Board  to  be  constituted  as  follows: 
One  meml.r  thei-eof  to  be  named  by  the  United 
States,  one  by  Great  Britain,  and  one  by  the  Kepre- 
sentative  at  Washington  of  the  King  of  Italy. 

In  conclusion,  the  Parties  emrao:e  to  r  nsider  the 
result  of  ^he  proceedings  of  the  Tribunal  of  Arbitra- 
tion and  of  the  Board  of  Assessors,  should  such 
Board  be  appointed,  "  as  a  full,  perfect,  and  final  set- 


20 


riiE   TliKATY    OF   AVASIIINGTOX. 


II 


tlciiicnt  of  all  tlie  claims"'  in  question  ;  and  furtlier 
engage  that  "  every  such  claim,  wlietlier  the  same 
may  or  may  not  liave  been  i)resenti;d  to  the  notice 
of,  made,  ])refei'red,  or  laid  Lefore  the  TriV)nnal  or 
Board,  shall,  from  and  after  the  conclusion  of  the 
proceedings  of  the  Tribunal  oi'  Board,  be  considered 
and  treated  as  finally  settled,  barred,  and  thenceforth 
inadmissible." 

AKRANGEMENTS   OF  AKBTTRATION. 

The  a]i])ointment  of  Arbitrators  took  place  in  due 
course,  and  with  the  ready  good-will  of  the  three  neu- 
tral (Governments.  The  United  States  appointed  Mr. 
Charles  Francis  Adams;  Great  Britain  a])])ointed  - 
/Vlexander  Cockburn ;  the  King  of  Italy  named  Count 
Frederic  Sclopis;  the  President  of  the  Swiss  Confed- 
eration, Mr.  Jacob  StaMupfii;  aiiil  the  Emperor  of 
Brazil,  the  Baron  dTtajuba. 

Mr.  J.  C.  Ijancroft  Davis  Avas  a})pointed  Agent  of 
the  United  States,  and  Lord  Tenterden  of  Great 
15ritain. 

The  Tribunal  was  organized  for  the  reception  of 
the  case  of  each  Party,  and  held  Its  first  conference  on 
the  15th  of  Decendu'r,  1871. 

On  the  motion  of  Mr.  Adams,  seconded  l)y  Sir 
Alexand(;r  Cockburn,  it  was  voted  that  Count  Sclopis, 
as  being  the  Arbitrator  named  by  the  first  l^oAver 
mentioned  in  the  Treaty  after  Great  Britain  and  the 
United  St.ites,  should  preside  over  the  labors  of  the 
Tril)unal. 

I  observe  in  passing,  as  will  be  more  distinctly  seen 


ALABAMA   CLAIMS. 


27 


hereafter,  tliat  tlie  personal  fitness  of  Count  Sclopis 
also  i-endered  it  eminently  proper  that  h(^  should  i)re- 
side;  lV)r  he  was  the  senior  in  age  of  all  the  Arbitra- 
tors, of  exalted  social  condition,  and  distinguished'  as 
a  man  of  letters,  a  jurist,  and  a  statesman. 

On  the  proposal  of  Count  Sclopis,  tlie  Tribunal  of 
Arbitration  requested  the  Arljitrator  named  ])y  tlie 
President  of  the  Swiss  Confederation  to  recommend 
some  suita])le  person  to  act  as  the  Secretary  of  the 
Tribunal.  "Sir.  StM;mi)ili  named  for  this  office  Mr. 
Alexandre  Favrot,  and  he  was  accordingly  appointed 
Secretar}'. 

The  oi'Inted  Case  of  the  United  States,  with  accom- 
panying documents,  ^vas  tiled  l)y  Mr.  Bancroft  Davis, 
and  the  printed  Case  of  Great  Britain,  with  docu- 
ments, by  Lord  Tenterden. 

The  Ti'ibunal  made  regulation  for  the  filing  of  the 
resr  active  Counter-Cases  on  or  before  the  15th  day  of 
April  next  ensuing,  as  required  by  the  Treaty ;  and 
for  the  convening  of  a  special  meeting  of  the  Tribu- 
nal, if  occasion  should  require  ;  and  then,  at  a  second 
meeting,  on  the  next  day,  they  adjourned  until  the 
loth  of  J;.ae  next  ensuing,  subject  to  a  prior  call  by 
the  Secretary,  if  there  should  be  occasion,  as  provided 
for  in  the  i)roceedings  at  the  first  Confei'ence. 

The  record  of  these,  and  of  all  the  subsequent  Con- 
ferences of  the  Tribunal,  is  contained  in  alternate  Pro- 
tocols, drawn  up  both  in  French  and  in  English,  veri- 
fied by  the  signatures  of  the  President  and  Secretary, 
and  of  the  agents  of  the  two  Governments. 

In  these  opening  proceedings,  that  is,  at  the  very 


■* 

^ 


28 


THE   TREATY   OF   WASHINGTON. 


earliest  moment  possible,  signs  became  visible  of 
the  singular  want  of  discretion  and  good  sense  of 
the  "  enfant  terril^le,"  ostentatiously  protocoled  "  Lord 
Chief  Justice  of  England,"  whom  the  British  Govern- 
ment had  placed  on  the  Tribunal. 

The  vernacular  tongue  of  Count  Sclopis  was  Ital- 
ian ;  that  of  the  Baron  dTtajul)a,  Portuguese;  and 
that  of  IMr.  Sta'mpili,  German.  Count  Sclopis  spoke 
and  read  English,  and  IMr.  Stncmpiii  read  it.  All  tlie 
Arbitrators,  however,  Avere  well  acquainted  with 
French ;  and  it  was  in  this  language  that  they  com- 
municated with  one  another,  whether  in  social  inter- 
course or  in  the  discussions  of  the  Tribunal.  Thus, 
we  had  before  us  a  Tribinial,  the  members  of  Avhich 
did  not  either  of  them  make  use  of  his  OAvn  lano:ua2:e 
in  their  common  business ;  but  met,  all  of  them,  on 
the  neutral  ground  of  the  common  diplomatic  lan- 
guage of  Europe. 

In  this  connection  it  was  that  the  United  States 
enjoyed  their  first  advantage.  Our  Government  did 
not  need  to  wait  until  the  organization  of  the  Tribu- 
nal to  know  in  what  language  its  proceedings  would 
be  conducted ;  and,  in  prevision  of  this  fact,  it  ordered 
the  American  "Case"  to  be  translated  from  the  En- 
glish into  French,  so  as  to  be  presented  simultaneous- 
ly in  both  languages  at  the  meeting  of  the  Tribu- 
nal :  the  exigency  for  which  Avas  not  anticipated, 
or,  if  anticipated,  was  not  provided  for,  by  the  Brit- 
ish Government. 

The  American  "  Case  "  and  documents  are  contain- 
ed in  eight  volumes  octavo,  which  consist  in  all  of 


ALAHAMA  CLAIMS. 


29 


5442  pages,  as  reduced  to  a  coniiiion  standard,  that  of 
the  printing  hy  Congress. 

The  British  "  Cast' "  and  documents  fill,  in  the  re- 
print by  Congress,  three  volumes  octavo,  consisting  of 
2S'2?)  pages. 

Perusal  of  the  American  and  British  Cases,  and  of 
their  accompanying  documents  ou  both  sides,  bi'ings, 
us  to  consideration  of  the  peculiarities  in  the  course 
of  argument  and  trial  prescribed  by  the  Treaty. 

In  effect,  the  United  States  were  the  i)laintiffs,  and 
Great  Britain  the  defendant,  in  a  suit  at  la^v,  to  be 
tried,  it  is  true,  before  a  special  tril)unal,  and  deter- 
mined by  conventional  rules,  but  not  the  less  a  suit 
at  laAV  for  the  recovery  of  damages  in  rej^aration  of 
alleged  injuries. 

In  common  course,  the  plaintiff's  counsel  would 
open  his  case  and  put  in  his  evidence ;  the  defendant's 
counsel  would  then  open  the  defense  and  put  in  de- 
fensive proofs ;  and,  vi'tav  the  close  of  the  testimony 
on  both  sides,  the  defendant's  counsel  woidd  argue  in 
close  for  the  defense,  and  then  the  i)laintiff's  counsel 
in  final  close  for  the  plaintiff'. 

Here,  on  the  contrar}' ,  the  defendant's  opening  argu- 
ment and  defensive  proofs  Avent  in  at  the  same  time 
as  the  })laintift''s  opening  argument  and  proofs,  each 
under  the  name  of  the  "Case"  of  the  respective  Party. 

The  British  Case,  of  course,  could  not  answer  the 
American  Case,  save  b}^  conjecture  and  anticipation 
founded  on  common  knowledge  of  the  subject-matter. 

The  respectiv^e  Counter-Cases  of  the  Pai'ties  were 
to  go  in  together,  in  like  manner,  in  April,  and  their 


m 


^^'^'^'^^BnsianmaBrammwww 


30 


THE   TREATY   OF  WASIIIXGTOX. 


respective  Ar<]ruments  iii  June :  so  tliat  the  Counter- 
Cases  would  on  each  side  be  response  to  tlie  previous 
Cases,  and  the  Arguments  to  tlie  previous  Counter- 
Cases. 

This  course  of  presentation  was  in  no  sort  prejudi- 
cial to  the  United  States,  as  plaintiffs,  and  was  exceed- 
ingly advantageous  to  Great  Britain,  as  defendant. 


I 


THE   AMERICAN   CASE. 

Nevertheless,  when  our  "Case  "went  in, — that  is  to 
say,  the  opening  argument  for  the  United  States, — its 
true  character  as  such  was  misapprehended  in  En- 
gland, where  it  seemed  to  be  forgotten  that  the  time 
and  place  for  replying  to  it  were  in  the  British  Coun- 
ter-Case, and  not  in  the  newspapers  of  London  or  in 
the  British  Parliament. 

Similar  misconception  occurred  subsecpently  with 
reojard  to  the  American  Arc:ument ;  tlie  Counsel  for 
Great  Britain  thinking  that  lie  ought  to  have  the  op- 
portunity of  replying,  as  will  be  explained  hereafter, 
and  losincj  sic^lit  of  the  fact  that  the  British  Govern- 
ment  had  already  ai'gued  the  matter  three  times  in 
"  Case,"  "  Counter-Case,"  and  "  Argument." 

As  to  the  American  Case,  it  seemed  to  fall  into  the 
adversary's  camp  like  a  bomb-shell,  which  rendered 
every  body  dumb  for  a  month,  and  then  produced 
an  explosion  of  clamoi*,  which  did  not  cease  for  three 
or  four  months,  and  until  the  final  decision  of  the 
Tribunal  of  Arbitration.  • 

The  leading  journals  of  England,  whether  daily  or 
weekly,  such  as  the  London  Times,  Telegraph,  anel 


ALAIJAMA   CLAIMS. 


31 


'V- 


News,  tLe  Saturday  llevie^v,  the  S])(?ctator,  tlie  l*all 
Mall  Gazette,  the  INIanchester  Guardian,  and  otlior 
British  journals  generally,  are  certainly  conducted 
with  great  ability,  and  are  second,  in  character  and  in 
value,  to  no  others  in  Europe.  In  view  of  which  it 
nuist  be  confessed  that  the  outcry  which  they  made 
airainst  the  American  Case  seemed  to  me  at  the  time 
to  be  altogether  unworthy  of  them  and  of  England. 

It  was  my  opinion  on  reading,  the  American  Case 
for  the  first  time,  and  is  my  opinion  iww,  after  re- 
peated readings,  that  it  is  not  only  a  document  of 
signal  ability,  learning,  and  forensic  force, — which,  in- 
deed, every  body  admits, — but  that  it  is  also  temper- 
ate in  language  and  dignified  in  spirit,  as  becomes 
any  state  paper  which  is  issued  in  the  name  of  the 
United  States. 

I  do  not  niean  to  say  that  it  is  so  cold  a  document 
as  the  British  Case.  Warmth  or  coldness  of  color  is  a 
matter  of  taste,  in  respect  of  which  the  United  States 
liave  no  call  to  criticise  Great  Britain,  and  Great  Brit- 
ain l\as  no  YvAit  to  criticise  the  United  States. 

We  may  presume  that,  in  the  exercise  of  its  un- 
(juestionable  right,  the  Government  of  the  United 
States  made  up  its  Case  in  the  aim  of  convincing  the 
Arbitrators,  and  not  with  any  dominant  purpose  or 
special  expectation  of  pleasing  Great  Britain. 

But  there  is  no  just  cause  of  exception  to  the  gen- 
eral tenor,  spirit,  or  style  of  the  American  Case.  Its 
facts  are  pertinent ;  its  reasoning;^  are  cogent ;  its  con- 
clusions are  logical:  and  in  all  that  is  the  true  ex- 
planation of  the  emotion  it  occasioned  in  England.    • 


;,*iS 


THE   TKKATY   OF   WASIILNGTUN. 


>\ 


■  \ 


rnt(']lia:('iit  i)e()])lo  there,  on  reading  tlio  American 
Case,  then  opened  tlieir  eyes  universally  to  the  fact 
that  (ireat  I^ritain  was  about  to  he  tried  before  a  hidi 
court  constituted  Ijy  tlii'ce  neutral  Governments. 
That  was  not  an  agreeable  subject  of  reflection.  In- 
telligent Englishmen  also,  on  reading  the  American 
Case,  began  to  be  uneasily  conscious  of  the  strength 
of  the  cause  of  the  United  States.  And  that  was  not 
an  agreeal)le  subject  of  reiiection.  For  a  good  cause, 
in  a,  good  court,  seemed  likely  to  result  in  a  great  in- 
ternational judgment  adverse  to  England. 

The  specific  objections  preferred  were  (piite  futile. 
Thus,  complaint  was  made  because  the  Case  chaiged 
the  British  Ministers  with  unfriendliness  to  the 
United  States  for  a  certain  period  of  the  Civil  AVar. 
But  the  charge  was  })roved  by  citing  the  declarations 
of  those  Ministers ;  it  was  not,  and  could  not  l^e  de- 
nied by  any  candid  Englishman;  it  is  admitted  by 
Sir  Alexander  Cockburn  in  the  dissenting  o2)inion 
Avliich  he  filed  at  the  close  of  the  Arbitrati(>u.  And 
the  charge  was  pertinent,  because  it  exj)lained  the 
negligent  acts  of  subordinate  British  authorities,  as 
at  Liverpool  or  Nassau  :  which  acts  could  not  be 
otherwise  explained  unless  by  suggesting  a  worse 
im])utation,  namely,  that  of  hostile  insincerity  on  the 
part  of  the  Ministers. 

If  there  be  any  person  at  the  present  day,  who  is 
inclined  to  call  in  question  the  truth  of  the  foregoing 
'  remarks,  ho  is  earnestly  entreated  to  read  the  Amer- 
ican Case  now,  in  the  light  of  the  adjudged  (ju'dt  of 
the  British  Government,  and  he  will  then  see  ample 


ALABAMA   CLAIMS. 


;3a 


[iicncan 
lu'  fact 
'  IX  Li  I'll 
niiieiits. 
m.  Ill- 
inericuii 
tiviigth 
^vas  iio.t 
lI  cause, 
!;reat  in- 

e  futile, 
cliaim'd 

to  the 
.'il  \Var. 
uvations 
t  be  (le- 
tted Ly 
opinion 
.  And 
lied  tlie 
ities,  as 

not  l)e 
a  worse 
'  on  tlie 


\\ 


lio  is 


•reii'oini'* 
y  Anier- 
'j}iiU  of 
0  ample 


cause  to  approve  tlie  reason,  the  dignity,  and  tlie  teiii- 
])er  of  that  Case. 

EXl'LANATION  OF  On.TECTIOXS   TO  THE   AMERICAN   CASE. 

The  truth  undoubtedly  is,  that  discontent  with  the 
Treaty  itself  had  much  to  do  in  England  with  objec- 
tions to  the  "Case."  The  British  ^linisters  had  ne- 
gotiated the  Treaty  in  perfect  good  faith,  and  in  well- 
founded  conviction  of  its  wisdom,  of  the  justice  of  its 
provisions,  and  of  its  not  conflicting  with  the  honor 
either  of  Great  Britain  or  of  the  Ignited  States.  Par- 
liament had  accepted-  the  Treaty  without  serious  op- 
position, and  with  but  little  debate,  except  on  the 
very  trivial  ^>c^y'/y  ([uestion  whether  it  Avas  more  or 
less  favorable  to  Great  Britain  than  the  conventions 
negotiated  by  Lord  Stanley  and  the  Earl  of  Claren- 
don. And  Great  Britain,  as  a  ndtiot,  had,  beyond 
all  peradventure,  heartily  approved  and  Avelcomed 
the  conclusion  of  the  Treaty. 

But,  on  reading  the  American  Case,  and  reflecting 
on  the  constitution  of  the  ])roposed  Tribunal,  many 
Englishmen  yielded  to  a  sentiment  of  undue  estimate 
of  KngUah  law  and  EiujUhIi  lawj^ers,  as  distinguished 
from  the  laws  and  the  lawyers  of  Continental  Europe 
and  of  Spanish  and  Portuguese  America.  England 
has  good  reason  to  be  proud  of  her  legal  institutions 
and  of  her  jurists,  and,  of  late  years,  she  has  learned 
to  regard  the  cominon  law  with  some  al)atement  of 
ihixt  fetich  ism  of  devotion  which  was  taught  l)y  Coke 
and  by  Fortescue.  But  the  statesmen  aj^pointed  by 
the  three  neutral  Governments  to  act  as  Arbitrators 

C 


I      ll  ' 


84 


TIIK   TKKATY    OK    WASHINGTON. 


If       I 


I       i 


1 


«i 


at  Ocncva,  and  \\  li<»,  it  was  clearly  seen,  would  be  the 
efl'ec'tive  judges  in  the  cause,  were  not  likely  to  share 
tliM  English  opinion  of  the  conunon  law  of  England. 
A'.id  these  three  Arbitrators  were  ])ersons  outside  of 
tl.'e  range  of  the  observation,  knowdedge,  or  a|)precia- 
tion  of  most  Englishmen,  who  felt  undefined  distrust 
of  men  whom  they  did  not  and  could  not  know  as 
they  knew^  Englishmen  and  Americans.  Kay,  En- 
glishmen were  heard  to  say,  in  conversation,  that  they 
would  ])r(;fer  a  tribunal  made  up  of  Englishmen  and 
Americans.  AVe  shall  fully  comprehend  how  strong 
this  sentiment  was  among  average  Englishmen,  when 
we  remcmljer  that  expression  was  given  to  it  in  the 
House  of  Lords  by  the  JMarquess  of  Salislniry,  who, 
notwithstandiuij:  his  hi<di  intelliixence,  .and  the  cos- 
moi)olitan  experience  which  men  of  his  rank  })ossess, 
could  characterize  as  uiilciiown^  and,  therefore,  as  ob- 
jectionable, an  actual  Embassador  in  Eranee,  an  ex- 
President  of  Switzerland,  and  a  Senator  and  ex-Min- 
ister  of  Italy  with  fame  as  a  jurist  and  historian  per- 
vading Europe.  It  was  a  sentiment  wdiich  Sir  Alex- 
ander Cockburn  betrayed  in  his  deportment  and 
lanojuao^e  at  several  meetino;s  of  the  Tribunal. 

These,  however,  were  but  the  transitory  incidents 
of  popular  emotion  and  public  discussion,  and  of  sec- 
ondary significance. 

AGITATION  RESrECTIXG  THE  NATIONAL  CLAIMS. 

But  the  agitation  which  soon  followed,  on  the  sub- 
ject of  certain  of  the  claims  set  forth  in  the  Case  of 
the  United  States,  arose  at  once  to  national  impor- 


ALA  HAM  A   CLAIMS. 


05 


1)('  the 
0  si  1  are 
i!:;laii<l. 
si(l(^  of 
)pr('('iii- 
listi'iist 
now  as 


Jiy, 


Eii- 


lat  tliey 
leii  and 
,'  stroni:: 
n,  ^vllen 
t  in  tlie 
ry,  ^vlio, 
the  cos- 
possess, 
e,  as  ol)- 
',  an  ex- 
ex-Min- 
I'ian  per- 
)iv  Alex- 
ent  and 

neidents 
d  of  sec- 


IMS. 

the  sul)- 

Case  of 

d  iiiipor- 


v| 


tance.  I  alluile,  of  coui'se,  to  what  was  frcr^iiently 
spoken  of  as  the  (inestion  of  "indirect  claims." 

The  cxj)ression  is  incorrect,  and,  if  admissible  as  a 
po})idar  designation,  it  must  not  be  i)ermitted  to  pro- 
duce any  misconception  of  the  true  (piestion  at  issue. 
It  would  be  less  inaccurate  to  speak  of  them  as  "claims 
fur  indirect  oi*  constructive  losses  or  damages,"  whicli 
is  the  more  common  i)hrase  in  the  diplomatic  papers ; 
and  less  inaccurate  still  to  say  "remote  or  conse({iien- 
tial  losses  and  damages."  Hut,  in  truth,  none  of  tliese 
('X}H'essions  are  correct,  and  the  use  of  them  has  done 
much  to  obscure  the  actual  point  of  controversy,  and 
to  divert  tlie  public  mind  into  devious  paths  of  argu- 
ment or  conclusion. 

When,  in  the  instructions  to  ]\[r.  Motley  of  Septem- 
ber 2r)th,  1S(>1),  President  (Jrant  caused  the  British 
Government  to  be  infoi'med,  throufjh  tlie  Secretary 
of  State,  of  the  nature  of  the  grievances  of  the  United 
States,  he  employed  the  folloAving  language : 

"  The  President  is  not  yet  ])i'e})!ire(l  to  jn'onouncc  on  tlic 
question  of  tlie  indemnities  MJiicli  lu;  thinks  due  by  (ireat 
]>ritain  to  individual  citizens  ot"  the  United  States  for  the  de- 
struetion  of  their  ])roperty  by  rebel  cruisers  fitted  out  in  the 
ports  of  (ireat  Britain. 

"  Xor  is  he  now  pre])ared  to  speak  of  the  reparation  ■which 
he  thinks  due  by  the  IJritish  Government  for  the  larger  ac- 
count of  the  vast  national  injuries  it  has  inflicted  on  the  United 
States. 

"  Xor  does  lie  attempt  now  to  measure  the  relative  cflect  of 
the  various  causes  of  injury,  whether  by  untimely  recognition 
of  belligerency,  by  suffering  the  fitting  out  of  rebel  cruisers,  or 
by  the  sup])ly  of  shi[)s,  arms,  and  munitions  of  war  to  the  Con- 
federates, or  otherwise,  in  m  hatsoever  manner. 


.•{(> 


TllK   TUKA'.'Y   OF   WASIIINCiTON. 


"  Xor  tloes  it  lUU  witliiii  llio  scope  of  tliis  (Visi)atcli  to  discuss 
the  important  clianujos  in  the  rules  of'i»til)lic  law,  the  desirable- 
ness of  which  has  been  demonstrated  l»y  the  incidents  of  the 
last  few  years,  now  iiiider  consideration,  and  which,  in  view  of 
the  maritime  prominence  of  (Jreat  l>rilain  and  the  United 
States,  it  would  helit  them  to  mature  and  propose  to  the  other 
States  of  Christendom. 

"All  these  are  subjects  of  future  cotisideration,  which,  when 
the  time  for  action  shall  arrive,  the  I'resident  will  consider 
with  sincere  and  earnest  desire  that  all  ditlerences  between 
the  two  nations  may  be  adjusted  amicably  and  compatibly 
with  the  hoiU)r  of  each,  and  to  the  jtronKttion  uf  future  concord 
between  them;  to  which  eiul  he  will  s|)are  no  etfort  within  the 
rani^e  of  his  suiuvme  duty  to  the  right  and  interests  of  the 
Taiited  States." 


Tli(j  Brltisli  Govcrmiient  was  in  this  way  distinctly 
notititid  tlnit,  in  addition  to  the  ([tiestion  of  indemni- 
ties to  individual  citizens  for  tlie  destruction  of  their 
property,  the  United  States  w^ere  entitled  to  re])ara- 
tion  "  for  the  lar£cer  account  of  tlio  vast  national  in- 
juries"  inflicted  on  them  as  a  Government. 

That  the  British  Government  so  understood  the 
matter  is  proved  by  the  tenor  of  the  elal)orate  respon- 
sive paper,  styled  "  0])servations,"  appended  to  Lord 
Clarendon's  dispatch  to  Sir  EdNvard  Thornton  of  the 
ensuing  November ;  and  our  national  claims  are  spe- 
cifically conmieiited  on  in  those  "  Observations." 

It  is  immaterial  how  these  national  losses  came 
afterward  to  be  designated  by  the  title  of  construct- 
ive or  indirect;  yet  such  is  the  fact. 

Now,  it  is  perfectly  clear  that  national  claims  are 
not  claims  for  indirect  or  constructive  loss,  any  more 
than  individual  claims  are.     In  fact,  throui2:hout  the 


AKAIIAMA    (LA I.MS. 


37 


^  discuss 
L'sirable- 
Ls  of  the 
view  of 
I  L'^iiited 
lio  other 

L'h,  when 
consider 
between 
npatibly 
coneord 
ithiii  the 
s  of  the 


^tinetly 
uloiniii- 
[)f  tlieir 
re])ara- 
>Nal  iu- 

od  the 

respon- 

o  Lord 

of  the 

Li'e  spe- 

3  came 
istruct- 

ms  are 
y  more 
)tit  the 


M 


Ic'^al  discussions  l)C'ton'  tlie 'I  rihuiial,  tlic  liiitisli  (lov- 
ci'iiincnt  steadily  maintained  that  all  tlif  claims  of  in- 
dividual citizens  toi'  the  destrui'tion  of  thcii'  V(^sscls 
hy  ('ont'cdci'atc  cruisers  were  in  the  nature  of  con- 
structive, indirect,  I'emotc,  and  conse([uential  injui'iHS 
or  losses,  and,  therefore,  not  rccovera])le  in  law,  cither 
by  the  rules  of  the  common  law  of  Kn<.dand  or  of  the 
civil  law  as  [)i'acticed  on  the  Continent.  Nothinu!; 
could  'lore  clearly  show  the  inapplicability  and 
equivocation  of  the  jdii'asc  "indii'cct ''claims  oi*  losses 
to  desiij-nate  any  of  the  contents  of  the  Treaty  of 
Washington. 

^Manifestly,  "while  })rivate  losses  are  su])posable 
which  may  be  direct  to  individual  citizens,  national 
losses  are  supj)osable  which  nnty  ])e  direct  to  the  na- 
tion. On  the  other  hand,  ])riyate  losses  are  su|)j)Osa- 
ble  as  well  as  national,  which  any  jurist  or  any  court 
woidd  pi'onounc(^  to  be  indirect,  remote,  or  consecpien- 
tial  in  their  nature. 

All  the  discussion  on  this  question  asserts  or  ad- 
mits inqiliedly  that  the  capture  of  a  priyate  mer- 
chant's y(^ssel  by  a  C'onfederate  cruiser  intlicted  direct 
loss  or  damao-c  on  the  citizen-])i'oprietor.  '  v'^as  not 
the  loss  or  damage  occasion<'d  by  the  capture  of  a 
(loyernment  yessel  equally  a  case  of  direct  loss  to 
the  Govei'nment  f     Most  assuredly. 

Pursue  the  iiKjuiry  one  stej)  further.  If,  in  a  war 
carried  on  by  land  bet^veen  two  States,  one  of  them 
inyades  the  other  and  deyastates  the  territory  there- 
of, is  not  that  a  case  of  direct  injury  to  the  invaded 
State?     If  the  hostilities  in  (piestion  be  purely  mari- 


i  ! 


J 


38 


THE   TltEATY    OF   WASHINGTON. 


time,  as  in  tlie  exaiiii)le  of  tlio  iin})eif('ct  or  quanl  war 
between  tlie  United  States  and  Fraiice  in  the  closing 
years  of  the  last  centniy,  can  it  be  denied  that  the 
injuries  done  to  either  nation  by  such  hostilities  on 
the  sea  involve  direct  national  as  well  as  private 
injuries? 

On  first  impression,  therefore,  it  might  seem  that 
the  British  Government  and  British  o])inion  ran  ^vild 
in  the  chase  of  shadows,  and  cond)ated  a  creature  of 
mei'e  imag'nation  in  quarreling  with  tliis  ])art  of  the 
American  Case  at  all,  and,  still  more,  in  cv.,ntending 
that  on  this  account  Great  Britain  could  be  justified 
in  revoking  the  arbitration  agreed  upon, — that  is,  in 
effect,  violating  the  Treaty. 

The  Treaty  referred  to  the  Triljunal  of  x\rbiti"ation, 
in  terms  une(piivocal,  ^^//  clai^/ts  (jf  the  United  Stateii 
[jiowhuj  out  of  the  actn  committLd  htj  certain  vessels, 
auiJ  (jeneriealUj  Jxiioim  as  ^'- Alaharna  Claims^  It 
might  need  to  go  outside  of  the  Treaty  into  antece- 
dent or  conter-iporaneous  dij)lomatic  correspondence 
in  order  i(y  ascertain  tlie  meaning  of  the  phrase  ^''uUa- 
heiina  Chiims;"  but,  in  so  doing,  it  ^^ould  incontro- 
vertibly  ap}>ear,  at  every  stage  of  such  correspond- 
ence, that  nationed  as  well  as  individuj.l  claims  wer  . 
comprehended,  and  were  all  confounded  together,  and, 
indeed,  without  mention  of  individual  claims,  in  the 
designation  of  "  claims  on  the  })art  of  the  United 
States." 

AVhether  any  of  the  claims  so  preferred  on  the  part 
of  the  United  States  were  for  losses  indirect  or  conse- 
quential would  be  an  ordinary  (piestion  of  jurispru- 


AI.AIJAMA  CLAIMS. 


39 


SI  Avar 
:;losiiig 
lat  the 
ties  on 
private 


n  til  at 
n  A\  ikl 
Aire  of 
of  the 
ending 
Listified 
it  is,  in 


tration, 

/  States 

vessels, 

isr  It 

antece- 

)ndence 

3  ''Ahi- 

.V- 

icontro- 

espond- 

is  wer  . 

.e 

er,  and, 

■^ 

,  in  the 

United 

he  part 

r  conse- 

urispru- 

dence,  for  the  decision  of  tlie  Tribunal  of  Arbitration, 
and  could  not  be  a  question  aflx^cting  the  integrity  or 
force  of  the  Treaty. 

No  expression  or  even  intimation  of  the  (piestion  of 
"  direct  or  indirect"  appears  on  the  face  of  the  Ti-eaty. 

And,  in  the  long  di])lomatic  corresjwndence  which 
ensued  on  this  subject,  it  was  conclusively  demon- 
strated by  Mr.  Fish,  and  Avas,  in  eft'ect,  admitted  by 
Lord  Granville,  that  no  agreement,  promise,  or  under- 
standing existed  on  the  part  of  the  Commissioners  to 
cpialify  the  clear  and  explicit  language  of  the  Treaty. 

CAUSE   OF   THIS   AGITATION. 

Hence  we  mi<»:ht  well  infer  or  believe  that  the  su- 
perlicial  or  apparent  question,  which  so  agitated  peo- 
ple of  high  intelligence  and  practical  sense  like  the 
English,  \\as  not  the  real  or  true  one.  It  was  not. 
And,  in  order  to  understand  the  causes  of  the  storm 
of  discussion  which  broke  over  Eiifrland  when  the 
tenor  of  the  American  Case  came  to  ])e  fully  appre- 
hended there,  and  of  the  real  consiernation  Avhich 
seemed  to  pi'evail  on  the  subject,  it  is  necessary  to 
take  into  consideration  certain  facts  wholly  independ- 
ent of  the  American  Case  and  the  Treaty. 
•  On  occasion  of  the  rejection  by  the  United  States 
of  the  Johnson-Clarendon  Treaty,  with  Mr.  Sumner's 
speech  as  a  commentary  on  that  act,  England  came 
distinctly  to  cctmprehend,  what  she  liad  Ijeen  fre- 
quently told  belbre  but  would  not  believe,  that  the 
United  States  attri])uted  the  prolongation  of  our  Civ- 
il War  largely  to  her  pivmature  recognition  of  the 


40 


THE  TREATY  OF  WASHINGTON. 


belliirorenco  of  the  Confederates,  and  to  tlie  conse- 
qiient  facility  of  the  latter  to  obtain  supplies-;  and 
also,  tliougl,  less  so,  yet  in  an  ai)precia1)le  degree,  to 
tbe  naval  warfare  wliieli  the  Confederates  cai'ried  on 
against  us  from  the  basis  of  operations  of  the  ports 
of  (xreat  Britain. 

Careful  perusal  of  the  instructions  to  Mr.  ^loth^y 
would  have  shown  that  the  President  of  the  United 
States,  while  persisting  to  elaini  reparation  for  all  in- 
juries done  l)y  Confederate  cruisers,  whether  to  indi- 
viduals or  to  the  nation,  did  not  insist  on  the  recog- 
nition of  belligerence  as  a  continuing  subject  of  claim 
of  (irreat  Britain. 

Conscious  of  this  distinction,  while  the  American 
Conmvissioners  would  not  relin(|uish  claim  on  account 
of  any  thing  done  l)y  Confederati^  cruisers,  the  British 
Commissioners  were  content  with  >i]nilations  of  in- 
denmity,  which  covered  all  national  claims  of  the  last 
category,  l)ut  did  not  reach  back  to  claims  on  recount 
of  the  imreasonableness  and  pi'ematurity  of  the  proc- 
lamation of  the  Queen. 

That  is  what  is  meant  by  IMr.  Bernard  in  his  lect- 
in'e  at  Oxford,  where  he  speaks  of  the  specijic  char- 
acter of  the  stipulations:  they  were  specific,  confined 
to  acts  of  the  Confederate  cruisers.  And  the  point 
is  clearly  evolved  in  the  debate  in  the  House  of  Lords 
on  occasion  of  the  presentation  of  the  Treaty,  when 
Lord  Russell  objected  that  it  was  no  l)etter  for  Great 
Britain  than  tlie  Johnson-Clarendon  Treaty,  and  Lord 
Granville  replied  that  it  was  better,  because,  while  it 
includes  claims  on  account  of  acts  of  cruisers,  it  does 


ALABAMA  CLAIMS, 


41 


•liar 


ii^. 


nor  include  claims  on  account  of  the  Queen's  proclama- 
tion recoirnizini!:  the  bellic:erence  of  the  Confederates. 

Nevertheless,  when,  in  England,  the  anjinnent  of 
tJie  American  Case  had  been  read  and  pondered, — 
when  it  was  perceived  that  this  argument  imputed  to 
Great  Britain  coiistrudlve  compile  It  ij  with  the  Con- 
federates by  reason  of  the  culpable  negligence  of  the 
British  Government  to  arrest  the  enterjirises  of  such 
vessels  as  the  A/ahama,  the  Florida.,  and  the  Shetian- 
doaJi, — and,  finally,  when  it  was  thus  understood  that, 
in  preferring  claim  for  all  the  loss  or  injury  growing 
out  of  the  acts  of  those  cruisers,  wliether  to  the  Gov- 
ernment or  to  i^rivate  citizens,  the  United  States  did, 
in  express  terms  as  well  as  in  legal  intendment,  liold 
the  British  Government  responsible  for  prolongation 
of  our  Civil  War  and  the  cost  of  its  prosecution, — 
when  all  these  relations  of  the  subject  came  to  ])e  un- 
derstood, the  public  mind  in  England,  and  especially 
the  commercial  mind,  recurred  at  once  to  the  event 
which  constituted  at  the  time  the  dominant  pi'e-occu- 
pation  of  Europe,  namely,  the  war  indemnity  of  six 
milliards  so  recently  imposed  by  Germany  on  France. 

In  vie^v  of  this,  a  panic  terror  seemed  to  seize  upon 
London,  similar  to  what  occasioucilly  occurs  in  New 
York  and  other  great  money  centres,  producing  a 
state  of  demonstrative  emotion,  which,  to  calm  ob- 
servers outside  of  such  centres,  looks  like  the  spas- 
modic agitation  of  men  who  have  lost  their  senses, 
rather  than  intelligent  human  action.  Such,  indeed, 
is  all  panic  tei'ror,  as  exemjilified  by  numerous  his- 
torical incidents  of  the  contagious  influence,  both  in 


„v& 


^^m^^ 


I 


42 


THE  TREATY  OF   WASHINGTON. 


peace  and  war,  of  tlie  most  trivial  causes  aud  the 
most  absurd  illusions. 

On  the  present  occasion,  London  appears  to  have 
been  shaken  aud  tossed  by  the  intense  fear  of  Great 
Britain  being  in  turn  called  upon  to  pay  some  indefi- 
nite milliards  of  war  indemnity  to  the  United  States. 

DISCUSSION  BETWEEN  T/IE  TWO   GOVERNMENTS. 

The  British  Government  was  very  slow  to  take 
this  infection  of  popular  fear  and  commotion.  The 
American  Case  was  duly  filed  on  the  15th  of  Decem- 
ber. Many  copies  of  it  were  in  the  hands  of  the 
British  Ministers  in  a  few  days  thereafter.  We  do 
not  hear  of  any  particular  disturbance  of  mind  on 
the  part  of  the  Ministers  until  the  beginning  of  Feb- 
ruary, tliat  is,  the  lapse  of  six  or  seven  weeks,  when 
the  American  Minister,  General  Schenck,  telegraphed 
to  Mr.  Fish  as  follows:  "  London  journals  all  demand 
that  the  United  States  shall  withdraw  claims  for  in- 
direct damages,  as  not  within  intention  of  treaty. 
Ministnj  alarmed^  To  which  Mi*.  Fish  responded 
by  telegraph  as  follows:  "There  must  be  no  with- 
drawal of  any  part  of  the  claim  presented.  Counsel 
V,  111  argue  the  case  as  prepared,  unless  they  show  to 
this  Government  reasons  for  a  change.  The  alai'm 
you  speak  of  does  not  reach  us.  We  are  perfectly 
calm  and  content  to  await  the  award,  and  do  not  an- 
ticipate repudiation  of  the  Treaty  by  the  other  side." 
And  in  these  two  telegrams  we  have  the  history  of 
the  whole  interval  of  time  prior  to  the  next  meeting 
of  the  Tribunal.      Newsj)a2:)ers  in   England  lashed 


ALABAMA  CLAIMS. 


43 


slied 


themselves  into  a  "fine  frenzy."  Ministers  and  the 
Parliament,  instead  of  manfully  taking  a  stand  at  tlie 
outset  in  opposition  to  the  po2:)ular  current  of  delu- 
•  sion  and  passion,  got  alarmed  and  lost  their  heads, 
and  said  and  did  some  thini»;s  not  creditaule  to  the 
British  Government.  In  the  United  States,  on  the 
other  hand,  sundry  persons  were  officiously  over-zeal- 
ous on  the  wrong  side  ;  the  news])aiier  press  was  a 
little  flustered ;  and  some  things  were  written  and 
published  which  it  would  have  been  better  not  to 
write  and  publish ;  but  the  ])ublic  mind  maintained 
its  equilibrium,  content,  on  the  whole,  to  await  the 
progress  of  the  arbitration  :  while  the  President,  the 
Secretary  of  State,  with  his  colleagues  of  the  Cabinet, 
and  the  Congress,  remained  "perfectly  calm,'^  stand- 
ing always  on  the  stipulations  <'f  the  Treaty,  and 
never  believing  it  would  be  broken  or  disregarded 
by  Great  Britain. 

In  my  opinion,  the  contrast  at  this  time  between 
the  attitude  of  the  British  Government  and  that  of 
the  American  Government  deserves  a  few  words  of 
co)nmentary. 

It  is  not  uncommon  in  England  to  suppose  and  to 
say  tliat  demagogy^  that  is,  factious  appeal  to  popular 
prejudice  and  passion,  is  a  conspicuous  feature  of 
political  action  in  the  United  States.  It  seems  to 
be  supposed  also  that  demagogy  here  pleases  itself 
especially  with  accusations  of  Great  Britain.  Mean- 
while, it  is  complacently  assumed  that  self  possession 
and  stability,  with  unexceptional  amiability  toward 
the  United    States,  characterize   political   action   in 


1 
i     I 

1  ' 

! 

1 

i 

i 

( 

j 

'r     1 

t 

44 


THE  TREATY  OF  WASHINGTON. 


Great  Britain.  I  tliiuk  the  aLsolute  reverse  of  all 
tliis  is  tlie  truth. 

In  (treat  ]^ritain  the  political  institutions  of  the 
country  are  indefinite,  unwritten,  unfixed,  without  a 
positive. stand-point  any  where,  shifting  from  day  to 
day ;  consisting,  in  form,  of  ^f  ings.  Lords,  and  Com- 
mons, without  any  visible  lines  of  limitation  between 
them,  and  resolved  to-day  into  an  omnipotent  Parlia- 
ment, one  branch  of  which,  the  House  of  Commons, 
arrogates  to  itself  the  character  of  a  constituent  na- 
tional convention  to  impose  on  King  and  Lords  any 
change  in  the  national  institutions  it  sees  fit,  and  as- 
suming to  itself  the  function,  by  means  of  a  quasi 
committee  of  its  body,  to  control  absolutely  the  ad- 
ministration, both  foreign  and  domestic,  of  Great 
Britain. 

This  quasi  committee  of  the  House  of  Commons, 
to  be  sure,  has  associated  with  it  another  quasi  com- 
mittee of  the  House  of  Lords:  which,  all  together, 
formerly  called  Ministers  of  the  Crown,  now  take  to 
themselves,  in  the  very  text  of  treaties  as  well  as  in 
domestic  aflfairs,  the  revolutionary  title  of  the  "  Brit- 
ish Government." 

But,  while  the  theoretical  power  of  the  Crown  is 
nominally  exercised  by  a  joint  connnittee  of  both 
Houses  of  Parliament,  it  i^  vested,  in  foct,  in  the  com- 
mittee of  the  House  of  Commons,  which,  upon  all  oc- 
casions, whether  of  ordinary  administrative  matters 
or  of  the  frequently  recurring  radical  changes  in  the 
political  institutions  of  the  country,  constantly  and 
loudly  defies  and  overbears  the  House  of  Lords. 


^-,^lSx.3its^x*,-v;iM^^.  -M- 


.■  i;f  tiV.  ;ij>;.^  >WKi--W-VA-  jh.  V  • 


ALABAMA   CLAIMS. 


45 


If  any  siniple-miiKled  person  in  tlie  United  States 
happens  to  cherisli  those  romantic  illusions  respect- 
ing the  constitution  of  England  Avhich  he  may  have 
ac(iuired  from  perusal  of  the  Commentaries  of  Sir 
William  Blackstone,  he  has  but  to  turn  over  the 
leaves  of  some  volume  of  Hansard's  Del)ates  in  Par- 
liament, or  peruse  authoritative  dis(piisitions  on  the 
sul)j('ct,  like  those  of  May  and  of  Bagehot,  to  discover 
that,  in  knowledge  and  reading  at  least,  he  has  not 
yet  emerged  from  the  mythical  epoch  of  the  i)olitical 
history  of  England. 

Now,  the  submergence  of  the  power  of  the  Crown 
in  Parliament,  and  of  that  of  Parliament  in  the  House 
of  Commons,  and  the  commitment  of  all  these  ])owers 
to  transitory  nominees  of  the  House  of  Commons,  are 
facts  which,  combined,  have  produced  the  result  that 
government  in  England  is  at  the  mercy  of  every  gust 
of  popular  passion,  every  storm  of  misdirected  public 
opinion,  every  devious  impulse  of  demagogic  agita- 
tion,— nothing  correspondent  to  which  exists  in  the 
United  States. 
•  Mr.  Gladstone  is  Prime  Minister  of  Great  Britain, 
— that  is  to  say,  of  three  hundred  millions  of  men,  ag- 
gregated into  various  States  of  Europe,  Africa,  Amer- 
ica, Asia,  and  Australasia.  But  he  holds  all  this  pow- 
er at  the  mere  will  of  a  majority  of  the  House  of  Com- 
mons. He  must  consult  their  wishes  and  their  prej- 
udices in  every  act  of  his  political  life.  If  he  con- 
ceives a  great  idea,  he  can  not  make  any  thing  of  it 
until  after  he  shall  have  driven  it  into  the  heads  of 
three  or  four  Imudred  country  gentlemen,  which  are 


i]   ', 


i     I 


!ii  I 


46 


THE   TUEATY   OF  WASHINGTON. 


not  always  easily  perforahJe  either  l)y  elocjuence  or 
by  reason.  And  din'ing  the  progress  of  all  great 
measures,  ineliuling  espeeiall}^  foreign  negotiations, 
whieh  re(|uire  to  be  left  'intlisturbed  in  their  prt)g- 
ress  from  germination  to  maturity,  he  is  subjeet  to  be 
goaded  almost  to  madness  every  day  by  vieious  in- 
terpellations, not  only  on  the  part  of  mcndjers  of  the 
Opposition,  but  even  his  own  supporters  in  the  House 
of  Conmions. 

IIow  different  is  the  spectaele  of  government  in 
the  United  States  !  Here,  the  President, — that  is,  the 
Prime  Minister  of  the  sovei'eign  people, — is  placed  in 
power  for  a  fixed  period  of  time,  during  which  he  is 
politically  independent  of  faction,  and  can  look  at  the 
temporary  passions  of  the  hour  Avith  calmness,  so  as 
to  judge  them  at  their  true  value,  and  accept  or  reject 
their  voice  according  to  the  dictates  of  public  (hity 
and  the  command  of  his  conscience.  Neitlier  he  nor 
any  of  the  members  of  his  Ca])inet  are  subject  to  be 
badgered  by  foctious  or  unreasonable  personal  inter- 
rogation in  either  house  of  Congress. 

Moreover,  the  House  of  Kepresentatives  does  not 
presume  to  set  itself  up  as  the  superior  either  of  the 
President  or  of  the  Senate.  Nor  is  the  Senate  in  the 
condition  of  being  terrified  from  the  discharge  of  its 
duty  by  threats  on  the  part  of  the  President  or  of  the 
House  of  Representatives  to  subjugate  its  free  will  at 
any  mome.it  by  thrusting  into  it  a  l)atch  of  twenty 
new  administration  Senators.  Least  of  all  does  the 
House  of  Representatives  presume  to  possess  and  ex- 
ercise the  powers  of  a  constituent  national  convention, 


ALAI5A.MA   CLAIMS. 


47 


to  cliaii<;(!   in    its  discretion  tlic  constitution  of  tlic 
United  States. 

Thus  it  was  tliat,  in  the  matter  of  the  discussion  of 
this  Treaty,  M\\  (Jhidstone  and  tlic  other  Ministers 
were  tossed  to  and  fro  on  the  surging  waves  of  jtub- 
lic  opinion,  and  jx'stered  from  day  to  day  in  Parlia- 
ment, wliih',  solicitously  engaged  in  reflecting  Ikjw 
best  to  keep  faith  with  the  United  States  and  at  the 
same  time  do  no  prejudice  to  Great  l>ritain.  If,  at 
that  period,  the  Ministers  said  in  debate  any  thing 
unwise,  any  thing  not  strictly  true  or  just, — Mr.  (i lad- 
stone  did,  but  Lord  (Jranville  did  not, — let  it  not  be 
remembered  against  them  personally,  but  charged  to 
the  uncontrollable  difficulties  of  their  position,  and  the 
sicfual  defectiveness  and  intrinsic  weakness  of  the  or- 
cyanic  institutions  of  (Treat  Britain. 

During  all  that  period  of  earnest  discussion  on  both 
sides  of  the  ocean,  it  Mas  to  me,  as  an  American, 
matter  of  the  highest  thankfulness  and  gratulation 
and  patriotic  pride,  to  see  the  (Tovermnent  of  the 
United  States, — President,  Seci'etary  of  State,  Cabinet, 
Congress, — continue  in  the  even  tenor  of  their  public 
duty,  calm,  unrutHed,  self-jiossessed,  as  the  stars  in 
heaven.  The  Executive  of  the  United  States  is,  it  is 
true,  by  its  very  nature,  a  thoughtful  and  self-con- 
tained ]lo^ver.  Congress,  on  the  other  hand,  is  the 
field  of  debate  and  the  place  where  popular  passions 
come  into  evidence,  as  the  winds  in  the  cave  of  yEolus. 
But,  on  this  occasion,  no  more  del)ate  occurred  in 
either  House  tlian  that  least  possible  expression  of 
opinion,  which  was  necessary  to  show  accord  with  the 


f  I. ' 


1    I 


I  I 


'I  . 


48 


Tin-:   TIIEATY   OF  WASHINGTON. 


' 


Executive.  Even  tlie  Opposition,  to  its  honor  Le  it 
said,  contlucted  itself  with  comnienilaLle  reserve  and 
consideration.  How  different  from  all  this  was  the 
S2)eetaele  exhibited  by  the  British  Parliament! 

ENGLISH   MISCONCErTION   OF  AMERICAN   SENTIMENT. 

I  contradict,  with  ecpial  positiveness,  the  suggestion 
that  dema2:o<i:ic  aiiitation  in  the  United  States  feeds 
itself  largely  on  alleged  hatred  of  (iJ'eat  Britain.  I 
think  toi)ics  of  international  reproach  are  more  com- 
mon in  England  than  here.  The  steady  current  of 
emiizration  from  Em^land,  Scotland,  and  Ireland  to 
the  United  States,  and  especially  at  the  })resent  time 
from  England,  is  not  a  grateful  su])ject  of  conteini)la- 
tion  in  Great  Britain.  England  perceives,  Ijut  not 
with  perfect  contentedness,  that  the  British  race  in 
America  Lids  fair  soon  to  exceed  in  numbers  and  in 
power  the  British  race  in  Europe.  And,  above  all, 
the  gradually  increasing  foi'ce  of  those  factions  or 
parties  in  Great  Britain,  which  demand  progressive 
enlargement  of  the  basis  of  suffrage,  equal  distribu- 
tion of  rei)resentation,  vote  by  ballot,  the  separation 
of  Church  and  State,  subdivision  of  the  great  pro2> 
erties  in  land,  cessation  of  hereditary  judicial  and  po- 
litical power,  intellectual  and  social  elevation  of  the 
disinhei'ited  classes, — I  say  such  parties  or  factions,  in 
appealing  to  the  institutions  of  the  United  States  as 
a  model,  provoke  criticism  of  those  institutions  on  the 
part  of  the  existing  depositaries  of  i)roperty  and  polit- 
ical power.  Owing  to  these,  and  other  causes  ^vhich 
might  be  indicated,  it  seems  to  me  that  the  United 


ALABAMA    CLAIMS. 


49 


States  encounter  more  criticism  in  Cireat  Britain  than 
Great  Britain  does  in  tlie  United  States. 

Moreover,  it  should  1)C  l)orne  in  mind  that  much  of 
the  inculj)ation  of  (ireat  Britain  which  is  perceived  in 
the  United  States  jn'oceeds  from  Britisli  immigrants, — 
hirgely  Irish,  but  in  ])art  Scottisli  and  English, — who, 
like  other  Europeans,  are  Init  too  prone  to  come  here 
■with  all  their  native  political  prejudices  clinging  to 
them;  who  not  seldom  hate  the  Ciovernment  of  their 
native  land;  and  who,  of  course,  need  time  to  cease  to 
be  .lun'0])eans  in  s|)irit  and  to  Ijecome  simj)ly  Amer- 
icans. And  it  would  not  be  without  interest  in  this 
relation  to  see  how  many  of  such  2)ersons,  in  the  news- 
])aper  press  or  elsewhere,  say  or  do  things  tending  to 
cause  it  to  be  supposed  that  opinion  in  the  United 
States  is  hostile  to  Great  Britain. 

Thei'e  is  one  other  class  of  facts  which  it  is  proper 
to  state  in  this  relation,  and  particularly  proper  for 
me  to  state. 

The  successful  revolution  of  the  thirteen  Colonies 
was  an  event  most  unacce})table,  of  course,  to  England. 
We,  the  victors  in  that  contest,  should  not  murmur  if 
resentful  memories  thereof  lino;ered  for  some  time  in 
the  breasts  of  the  defeated  party.  I  think,  however, 
such  feelings  have  ceased  to  manifest  themselves  in 
England.  .'  is  to  quite  other  causes,  in  my  opinion, 
that  we  are  to  attribute  the  successive  controversies 
between  the  two  countries,  in  which,  as  it  seems  to 
me,  the  2;reater  AAi'onu:  has  in  each  case  been  on  the 
side  of  England.  I  think  we  did  not  afford  her  suffi- 
cient cause  of  complaint  for  continuing  in  hostile  oc- 

D 


50 


THE   TUKATV   OF    \VASIIIN(JT(JN. 


'  b 


;i    ! 


n 


cup»ati<'n  oF  tlie  Nortliwesturii  'IVrritoi}'  I'd  so  many 
yeai'H  after  Avt^  liad  niado  ])eac'('.  1  think  she  was 
wi'oni(  in  issuini;  the  notorious  ( )i'(l('i's  in  Council,  and 
in  tlie  visitation  of  our  ships  and  iinj»ri'ssnu'nt  of  our 
seamen,  whicli  morally  constraineil  us,  after  exliaust- 
ini;  all  other  means  of  re<lress,  to  have  recourse  to 
Mar.  I  thiidv  slu;  was  wroni^:  in  e(»ntendinu'  that  lliat 
war  extinfaiislied  the  i'i<'lits  of  cojist  lisherv  assured 
to  us  l)y  the  Treaty  of  Independence.  I  ihink  she 
was  wrong  in  the  controversy  on  the  subject  of  colo- 
nial trade,  wliicli  attained  so  nuich  prominence  during 
the  Presidency  of  John  Quincy  Adams.  I  think  she 
was  wrong  in  attempting  to  set  up  the  fictitious  Mos- 
(piito  Kingdom  in  Central  America.  1  tliink  she  was 
wrong  in  the  so-called  San  Juan  Question.  And  so 
of  other  sulgects  of  dift'erence  Let^veen  the  t\N'o  (iov- 
ernments. 

Now,  it  has  liapi)ened  to  \m\  in  tlie  course  of  a  long 
public  life,  to  be  called  on  to  deal  oilicially,  either  in 
Congress,  in  the  Cabinet,  or  at  the  Bar,  with  many  of 
these  points  of  controversy  l)etween  the  two  (Jovern- 
ments,  of  which  it  suffices  to  mention  for  exam])le 
three,  namely  :  1 ,  the  Question  of  British  iMdistments ; 
2,  the  Hudson's  Bay  Company  ;  and  o,  the  Alabama 
Claims. 

In  regard  to  the  first  of  these  questions,  the  United 
States,  and  the  persons  Avho  administered  the  Covern- 
ment,  were  so  clearly  riiiht  t^at,  althouo:li  the  British 
Government,  in  its  Case,  im})rovidently  bi'ought  into 
controvei'sy  at  Geneva,  by  ^vay  of  counter-accusation, 
the  freneral  conduct  of  the  United  States  durino;  tlie 


-■ii 
-^1 


ALABAMA    CLAIMS. 


51 


i 


war  l)ct\V( H'li  (ii'dit  r>ilt;iiii  and  R'!«"i:i,  :iiv.l  althougii 
\V(^  replied  by  eliai'ging  in  res[)oiise  that  the  only  vio- 
lations of  neuti'ality  committed  in  tlie  Knited  States 
(hirinii;  that  war  were  eonnnitted  ])y  (ireat  Britain 
lierseU',  yet  in  the  snbseqnent  discussions  not  a  word 
ot  sell'-justifieation  on  this  point  was  preferred  by 
tlh-  British  (Jovermnent. 

Tn  regard  to  the  second  oi'  the  ([ue.stions,  a  member 
of  Parliament  pir.  IFuglies  |,  in  ignorance  of  tlie  facts, 
it  is  to  ])Q  ])resiimed,  undertook  to  impugn  the  con- 
duct (»f  tlie  C'oimsel  of  tlie  United  States,  and  to  draw 
inferences  tliei'cfrom  prejudicial  to  the  conduct  of  the 
Tnited  States  in  the  Ai'lVitration  at  (lenciva.  In  re- 
sponse to  this  complaint,  it  suflices  to  say  that,  on  oc- 
casion of  a  settlement  of  the  claims  of  the  Hudson's 
Bay  Company  and  of  its  shadow,  the  Puget's  Sound 
Agricultural  Company,  by  mixed  conunission,  under 
the  treaty  of  July,  ISO.'),  it  devolved  on  me,  in  behalf 
of  the  United  States,  to  assert,  and  to  prove  to  the 
satisfaction  of  the  Commission,  that  the  pretensions  of 
the  Hudson's  Bay  Company  were  scandalously  un- 
just, and  founded  on  premises  of  exaggeration  and 
usui'pation  injurious  to  (Ireat  Britain  and  to  the  Ca- 
nadian Dominion,  as  well  as  to  the  United  States. 
I  have  no  reason  to  regret  or  (jualify  any  thing  said 
or  done  by  me  in  that  affair. 

As  to  the  third  of  these  questions,  namely,  the  A/a- 
hama  Claims,  it  seems  difficult  to  comprehend  how 
persistent  demand  of  redress  on  the  part  of  the  United 
States  can  be  complained  of  by  any  candid  English- 
man noii\  when  the  judgment  of  the  Tribunal  of  Arr 


..  JiUJ 


r 


J ' 


52 


THE   TREATY    OF    WASHINGTON. 


bitration  establislies  tlie  fact  of  the  long  denial  of  jus- 
tice by  (fi'cat  l^ritain  in  this  behalf, — a  fact  admit1:ed 
also  by  so  prejudiced  a  person  as  Sir  Alexander  Cock- 
burn,  who  speaks  as  |"in  some  sense"  at  leastj  "the 
representative  of  Great  Britain." 

I  confidently  maintain,  therefore,  that  neither  the 
British  Government  nor  the  people  of  Great  Britain 
had  any  just  cause,  in  the  course  of  these  transactions, 
to  find  fault  with  the  s])irit,  tem])er,  or  language  either 
of  the  Government  or  the  Agent  or  Counsel  of  the 
United  States.  To  the  contrary  of  this,  it  seems  to 
me  that  on  our  side  alone  is  the  good  cause  of  com- 
plaint in  these  respects. 


''  V  S! 


ATTITUDE    OF   THE    AMEKICAN    GOVEIIN.MENT. 

As  respects  the  deportment  of  the  two  Goveniments 
in  this  crisis,  certain  it  is  that  the  conduct  of  that  of 
Great  Britain,  in  restin5>;  upon  the  American  Case  for 
nearly  seven  weeks,  and  then  aljruptly  breaking  out, 
in  the  Queen  s  speech  from  the  throne  and  in  debate 
in  Parliament,  with  objections  to  that  Case,  without 
previous  statement  thereof  in  diplomatic  communica- 
tion, was  uncourteous  to^vard  the  United  States. 

The  di])lomatic  discuj>sion  Avhich  ensued,  beginning 
with  Lord  Granville's  note  of  Fe])ruary  l),  1872,  and 
terminating  with  the  dispatch  of  Mr.  Fish  of  April  IG, 
1872,  may  now  be  read,  not  with  composure  only,  but 
with  supreme  satisfaction,  by  any  citizen  of  the  United 
States.  The  Secretary  of  State  []\Ir.  Fish]  demon- 
strates to  conviction  the  utter  baselessness  of  the  ]n'e- 
Lension  of  the  British  Government  that  the  so-called 


ALABAMA   CLAIMS. 


63 


indirect  claims  were  not  within  the  hotter  or  spirit  of 
the  Treaty  of  Wasliington.  And  he  repels  throuf^-h- 
out,  peremptorily  but  dispassionately,  the  call  of  the 
British  Government  on  the  United  States  to  withdi'aw 
this  class  of  claims  from  the  consideration  of  the  Tri- 
bunal. In  fine,  the  position  of  the  United  States  is 
plainly  expressed  in  different  parts  of  the  dispatches 
of  Mr.  Fish,  as  follows : 

"They  [tlie United  States]  desire  to  maintain  the  jurisdiction 
of  the  Tribunal  of  Arbitration  over  all  the  unsettled  claims,  in 
order  that,  being  judicially  decided,  and  the  questions  of  law 
involved  therein  being  adjudicated,  all  questions  connected 
with  or  arising  out  of  the  Alahtuna  Claims,  or  'growing  out  of 
the  acts'  of  the  cruisers,  may  be  forever  removed  from  the  pos- 
sibility of  disturbing  the  jjerfect  harmony  of  relations  between 
the  two  countries.  .  .  . 

"  What  the  rights,  duties,  and  true  interests  of  boih  the  con- 
tending nations,  and  of  all  nations,  demand  shall  be  the  extent, 
and  the  measure  of  liability  and  damages  under  the  Treaty,  is 
a  matter  for  the  supreme  determination  of  the  Tribunal  estab- 
lished thei-eby. 

"Should  that  august  Tribunal  decide  tiiat  a  State  is  not  lia- 
ble for  the  indirect  or  consequential  results  of  an  accidental  or 
nnintentional  violation  of  its  neutral  obligations,  the  United 
States  will  unhesitatingly  accept  the  decision. 

"  Should  it,  on  the  other  hand,  decide  that  Great  Britain  is 
liable  to  this  Uovernment  for  such  consequential  results,  they 
have  that  full  faith  in  IJritish  observance  of  its  engagements  to 
expect  a  compliance  with  the  judgment  of  the  Tribunal,  vhich 
a  solemn  Treaty  between  the  two  l*owers  has  created  in  order 
to  remove  and  adjust  all  complaints  and  claims  on  the  part  of 
the  United  States." 

The  American  Government  could  not  avoid  feeling 
that  the  public  discussion,  which  the  British  MiniS' 
ters  had  seen  fit  to  excite,  or,  at  any  rate,  to  aggravate, 


l\\ 


!    il 


m 


u  i 


54 


THE   TREATY    U1-'   WASHINGTON. 


^'1 


tfli 


and  "tlie  discourteous  tone  and  minatory  intimations 
of  the  Ministry,"  ini])osed  on  the  United  States  a  dif- 
ferent line  of  action  from  that,  w  liicli  miglit  liave  been 
a(h>pted  by  them  in  response  to  a  calm  presentation 
by  the  British  Government  of  its  construction  of  the 
Treaty. 

In  tliis  relation  there  is  another  class  of  facts  which, 
as  it  seems  to  me,  deserves  mention. 

Of  the  five  American  Commissioners  engaged  in 
the  negotiation  of  the  Treaty  of  Washington,  two, 
the  Secretary  of  State*  |  Mr.  Fish  |  and  our  ^Minister 
at  London  [General  Sclienclv|,  \\('i'e  officially  occu- 
pied in  discussing  the  question  on  the  American  Case 
raised  l)y  the  P>ritish  Government.  Th(;  published 
dispatches  show  with  what  signal  ability  they  dis- 
charged this  delicate  duty.  ]\reanwliile,  the  three 
otlier  Conunissioners,  Mr.  Justice  Nelson,  ]\Ir.  Hoar, 
and  Mr.  Williams,  although  iinpIiedJi/  accused  on  the 
other  side  of  taking  some  advantage  of  the  unso]>his- 
ticated  innocence  and  simplicity  of  the  British  Com- 
missioners, yet  maintained  ])ei'fect  self-control  in  the 
matter,  speaking  only  when  officially  called  upon  to 
speak,  and  otherwise  leaving  the  subject  where  it  be- 
longed,— in  the  hands  of  their  (xovernment. 

The  conduct,  on  the  other  hand,  of  some  of  the 
British  C'oi  inissioners  was  less  reserved  than  that  of 
the  American  Conunissioners.  Professor  Bernard  j^ot 
completely  off  the  track  of  I'eason  and  sense  in  a  lect- 
ure Avhich  he  delivei-ed  at  Oxford.  Sir  Staflbrd 
Northcote  let  oH'  a  very  inconsiderate  speech  at  Ex- 
eter.    And  Sir  Edwai'd  Thornton  made  a  not  veiy 


--■4 

m 


M 


ALABAMA   CLAIMS. 


55 


considerate  one  at  New  York.  But  Earl  de  Grey 
and  Ripon,  wlio  Lad  now  become  Marquess  of  Ilipou, 
deported  himself  with  admirable  dignity.  It  was,  in- 
deed, wittily  said,  or  reported  to  have  been  said,  by 
IMr.Lowe,  that  Lord  lii])on  was  going  aliout  very  sick 
at  tlie  stomach  of  a  n  'rquisate,  which  lie  would  be 
glad  to  throw  up;  but  the  reproach  was  wholly  un- 
deserved. Lord  llipon  manfully  maintained  silence 
Awhile  to  speak  would,  have  been  unwise;  when  at 
length  it  became  expedient  to  speak,  he  did  so  with 
discretion  and  with  judiciousness,  beyond  what  ap- 
peared in  the  speeches  of  some  other  mendjers  of  the 
Government. 


'% 


ACTION   OF  THE  AMERICAN   AGENT   AND   COUNSEL. 

Whilst  all  these  discussions  were  ffoino:  on  in  Great 
Britain  and  the  United  States,  we,  the  Agent  and 
Counsel  of  the  United  States,  were  busily  occupied, 
partly  at  Washington  but  chiefly  at  Paris,  in  the 
study  of  the  British  Case  and  the  preparation  of  the 
American  Counter-Case.  We  had  fixed  on  Paris  for 
our  head-quarters,  as  a  neutral  city,  as  a  great  centre 
of  international  jurisprudence  and  diplomacy,  and  as 
a  place  in  easy  communication  with  Loudon  and  with 
Washino;ton. 

Fi"om  this  c:round  of  vantao-e  we  could  observe 
and  estimate  correctly  the  current  of  discussion  in 
America,  in  Great  Britain,  and  on  the  Continent  of 
Europe. 

Speaking  for  myself,  at  least,  let  me  say,  it  appear- 
ed to  me  that  much  of  what  was  beins:  said  in  En- 


66 


THE  TREATY   OF  WASHINGTON. 


I 


ji: 

i 

■  ;                 ; 

gland,  Avliether  in  Parliament  or  in  the  Press,  was  un- 
seasonable or  indiscreet;  niucli  of  it  factions  toward 
the  British  Governuent  itself;  much  of  it  disrespect- 
ful to  the  American  Government ;  but  none  of  it  of 
any  ultimate  imj^ortance  or  consequence  in  regard  to 
either  Government,  for  the  following  reasons : 

1.  Both  Governments  sincerely  desired  peace.  Great 
Britain  could  never  have  retreated  from  the  Arbitra- 
tion in  violation  of  the  Treaty,  wliatever  the  Press 
might  say,  and  whoever  should  be  in  power  as  Min- 
ister. 

2.  Freedom  of  debate  is  essential  to  freedom  of  in- 
stitutions. To  be  sure,  the  Press  in  Great  Britain, 
and  somewhat,  but  less  so,  in  the  United  States,  is 
prone  to  take  upon  itself  I'ather  lofty  airs,  and  to 
speak  of  public  aflairs  quite  absolutely,  as  if  it  were 
the  Government.  But  nobody  is  deceived  by  this, 
not  even  the  Press  itself.  We,  the  English-speaking 
nations,  thank  heaven,  possess  the  capability  of  living 
in  the  atmosphere  of  oral  and  written  debate.  It  was 
safe  to  predict  that  howmuchsoever  Mr.  Gladstone 
and  Lord  Granville  might  feel  annoyed  by  the  din 
of  words  around  them,  it  would  not  induce  them  to 
break  faitn  with  the  United  States. 

3.  It  was  not  the  voice  of  the  English  Press  which 
could  seriously  aifect  us.  We  looked  rather  to  the 
state  of  opinion  in  the  French,  German,  and  Italian 
speaking  countries  of  Europe,  which,  on  the  whole, 
though  differing  as  to  the  legal  right  of  the  United 
States  to  recover  on  the  national  claims,  yet  decisive- 
ly agreed  with  us  in  affirming  that  those  claims  were 


t 


a 


ma 


snamsmoB^ 


ALABAMA   CLAIMS.  67 

comprelieiKled  witllin  the  scope  of  the  Treaty  as  main- 
tained by  the  United  States. 

What  Europe  dreaded,  ^vhat  all  European  opinion 
sought  to  prevent,  was  a  rifpfu7'e  between  Great  Brit- 
ain and  the  United  States,  to  disturb  the  money- 
market  of  Europe,  and  impede  the  payment  by  I  I'ance 
of  the  indemnity  due  to  Germany.  And  all  men  saw 
that  the  United  States  must  and  would  resent  the 
refusal  by  Great  Bi'itain  to  observe  the  stipulations 
of  the  Treaty  of  Washington. 

TRESENTATIOX   OF  COUNTER-CASES. 

Such  were  the  circumstances,  in  the  presence  of 
which  arrived  the  time,  namely,  the  15th  of  April,  at 
^vhich  the  two  Governments  were  to  file  at  Geneva 
their  respective  Counter-Cases. 

The  British  Government  was  so  solicitous  to  fulfill 
on  its  part  all  the  stipulations  of  the  Treaty,  that  it 
caused  special  inquiry  to  be  made  whether  the  Amer- 
ican Government  had  any  objection  to  Great  Brit- 
ain filing  her  Counter-Case  without  prejudice  to  her 
position  regarding  conseo^uential  damages;  to  which 
Mr.  Fish  rei)lied  that  the  British  Government  was 
bound  to  file  its  Counter-Case,  but  its  doing  so 
would  not  prejudice  any  position  it  had  taken,  nor 
affect  any  position  of  the  United  States. 

Accordingly,  on  the  loth  of  Ai)ril,  the  Counter- 
Cases  of  Great  Britain  and  the  United  States  Avere 
duly  filed,  with  express  reservation  of  all  the  rights 
of  both  Governments. 

The  British  Counter-Case,  consisting  of  four  vol- 


i 


n  ' 


1 


58 


THE   TREATY   OF  WASHINGTON. 


1 

■I    i 


ill 


;i| 


limes  folio,  contains  little  new  matter,  being  in  part, 
at  least,  defensive  argument  in  response  to  the  Amer- 
ican "  Case." 

The  American  Counter-Case,  consistinci:  of  two 
volumes  folio,  replies  argumentatively  to  the  British 
"Case,"  and  brings  forward  a  large  body  of  docu- 
mentary proofs,  responsive  to  matters  contained  in 
that  "  Case,"  a\  hich,  although  utterly  foreign  to  the 
question  at  issue,  recpiired  to  be  met,  because  con- 
sidered material  by  Great  Britain,  namely,  allegations 
of  default  on  the  part  of  the  United  States  in  the 
execution  of  their  own  neutrality  laws,  to  the  preju- 
dice of  other  Governments. 

The  introduction  of  all  this  matter  into  the  British 
Case,  the  iteration  of  it  in  the  British  Counter-Case 
and  the  Bi'itish  Argument,  and.  the  extreme  promi- 
nence given  to  it,  as  we  shall  hereafter  see,  by  the 
British  Arbitratoi",  serve  to  illustrate  the  singular 
unreasonableness  and  injustice  of  the  angry  com- 
plaints emitted  in  England  against  the  American 
Case. 

The  American  Case  contains  no  suc^cjestion  which* 
is  not  strictly  pertinent  to  the  issues  raised  by  the 
Treaty.  It  discusses  the  conduct  of  the  British  Gov- 
ernment relatively  to  the  United  States  during  our 
Civil  AVai",  with  strict  application  to  the  ^^ Alabama 
Claims."  It  charges  that,  in  those  ti'ansactions,  the 
British  Government  was  guilty  of  culpable  omission 
to  observe  the  re(|uirements  of  the  law  of  nations  as 
respects  the  United  States,  and  Avith  responsible  neg- 
ligence in  the  non-execution  of  the  neutrality  laws  of 


.1 


ALABAMA'  CLAIMS. 


59 


Great  Britain.     That  was  ilie  very  r^iiestion  present- 
ed by  the  Treaty. 

Great  Britain  professed  to  be  so  much  offended  by 
the  character  of  certain  of  the  proofs  adduced  in  the 
American  Case, — rigorously  pertinent  to  the  <piestion 
as  all  those  i)roofs  Avere, — that  she  would  not  suffer 
any  appropriate  answer  to  those  proofs  to  be  brought ' 
forward  in  her  Counter-Case  or  in  her  Argument :  it 
was  not  compatible  Avith  self-respect, — it  would  be 
irivin^*-  dicfnity  to  undi unified  aro;uments, — we  Avere 
told  by  the  J^ritish  Press.  Meanwhile,  the  very  mat- 
ter Avhich  the  British  Government  could  not  conde- 
scend to  notice  Avas  Ijoth  material  and  important  to 
such  a  degree  as  A^ery  much  to  intlame  the  temper  and 
exercise  the  ingenuity  of  Sir  Alexander  Cockburn, 
the  "  representative"  of  Great  Britain  at  Geneva. 

NoAV,  the  Amei'ican  Case,  if  conceived  in  any  other 
spirit  than  that  of  just  and  fair  exposition  of  the  pre- 
cise issue, — question,  that  is,  Avhether  the  British  Gov- 
ernment had  or  had  not  incurred  resj)onsibility  for 
its  Avant  of  due  diliofence  in  the  matter  of  Confederate 
cruisers  fitted  out  in  the  poi'ts  of  Great  Britain, — I 
say,  if  the  American  Government,  in  the  preparation 
of  its  Case,  had  not  been  animated  by  the  spirit  of 
perfect  fairness  and  justness,  it  ?nif/hf  have  gone  into 
the  in(|uiry  of  the  political  conduct  of  Great  Britain 
in  other  times,  and  with  reference  to  other  nations,  in 
the  view  of  imputing  to  her  Itahltual  disrc^gard  of  tlie 
laAv  of  nations  in  illustration  of  her  present  conduct 
toward  the  United  States.  We  misj-ht  have  chai'<?ed 
that,  Avhile  her  statesmen  contend  that  they  could  do 


CO 


TIIK  TKKA'IT    OF   WASIIIXdTOX. 


llOtlU 


til 


I  ; 


1 


I 


siieli 


h 


inuj  outside  of  an  Act  of  Parlianiont,  tlicy  liad  no 
Act  until  1810,  and  wcro  tliei'cfon',  pi'ior  to  that 
time,  confe.ssc'dly  impotent,  and  we  might  have  aihled 
Avillfiilly  HO,  to  oLsei've  the  duties  of  neutrality ;  we 
might  have  scrutinized  her  national  history  to  select 
conspicu(His  examples  of  her  acts  of  violence,  in  dis- 

»re2:ard  of  the  law  of  nations,  au^ainst  numerous  States, 
including  ourselves;  we  might  have  ap})ealed  to  ev- 
ery volume  of  international  law  in  existence,  from  the 
time  of  Grotius  to  tliis  day,  and  cited  page  after  ])age 
to  the  conclusion  of  the  unjust  international  policy 
of  Great  Britain  ;  and  we  mio-lit  have  argued  from  all 
this  to  infer  intentional  omission  of  the  British  (rov- 
ernment  to  prevent  the  escape  of  the  AlabcDna  and 
the  Flov'nhi. 

But  such  arguments,  you  will  sa}^,  ^vould  have  been 
forced,  remote,  of  doubtful  relevance,  and  of  a  nature 
offensive  to  England.  Be  it  so :  they  would,  if  you 
please,  have  been  irrelevant,  impertinent,  oU'ensive. 
And  no  such  arojuments  are  found  in  the  American 
Case. 

But  such  are  the  [irguments  which  pervade  the 
British  Case,  Counter- Case,  and  Argument,  and  the 
opinions  of  the  British  member  of  the  Trilnnuil.  In- 
stead of  defending  its  ow^n  conduct  in  the  uiatter 
at  issue,  the  British  Government  travels  out  of  the 
record  to  find  fault  with  the  conduct  of  the  United 
States  at  other  times,  and  with  respect  to  other  na- 
tions. It  presumes  to  take  upon  itself  the  function 
of  personating  Spain,  Portugal,  Nicaragua,  and  to  drag 

-  before  the  Tribunal  at  Geneva  controversies  between 


'% 


v-:f 


t 


ALABAMA    CLAIMS. 


(U 


4 

1 


lis  and  otlier  States,  with  wliieli  that  Tribunal  had 
no  possible  concern, — which  it  could  not  ])retend  to 
judge, — and  of  such  obvious  iri'elevancy  and  inn)erti- 
iience  that  not  one  of  the  Arl)itrators  condescended 
to  notice  tlieni  excej)t  Sir  Alexander  Cockburn. 

The  presentation  in  the  Ih'itish  Case  of  considera- 
tions of  this  ordei',  worthless  and  al)surd  as  argu- 
ment, and  wantonly  offensive  to  tlie  Tnited  States, 
Avas,  in  my  judgment,  an  outrageous  act,  com])ared 
■with  which,  in  possible  suscepti])ility  of  blame,  there 
is  nothing  to  be  found  in  any  of  the  affirmative  doc- 
uments presented  by  the  American  (Jovernment. 

It  was  the  cause  of  a  singularly  perNerse  incident, 
namely,  complaint  of  the  Jh'itish  Press  against  the 
American  Argument  for  im])uted  ((nkindnenH  in  al- 
luding to  subjects,  which  had  been  foi'ced  u])on  our 
attention  by  the  British  Case. 

I  mention  these  circumstances  for  the  purpose  of 
showing  how  relatively  unjust  it  was  to  impute  of- 
fensiveness  of  spirit  and  language  to  the  American 
Case  in  view  of  the  much  more  ol)iectionable  thino-s 
in  the  British  Case ;  and  for  the  further  pui'pose  of 
pertinently  stating  that  it  was  undign-'^jd  for  Great 
Britain  to  complain  of  the  manner  in  wL.  h  the  Agent 
or  Counsel  of  the  United  States  miu-ht  see  fit  to  ar- 
gue  our  cause,  as  it  would  be  for  the  American  Gov- 
ernment to  undertake  to  prescribe  limits  of  disci'e- 
tion  in  thi$  respect  to  the  Agent  or  Counsel  of  Great 
Britain. 

Thus,  the  15th  of  Ai)i'il,  looked  forward  to  with  so 
much   apparent  dread  by  the   Bi'itish  Government, 


I 


p 


02 


TIIK   TUKATY   OK   WASIIIX(JT0N. 


passed  away,  leaviiii,^  tlio  great  question  unsettled,  in 
wliat  manner  ultimately  to  deal  with  the  claim  for 
national  losses  preferred  l)y  the  United  States. 


'\ 


i\l 


NKdOriATIOXS    FOK    A    sri'I'LKMKNTAL    TRKATV. 

A  new  series  of  events  then  ha])pene(l,  which  occu- 
pied the  period  intervening  between  the  15th  of  Api'il 
and  the  ir)th  of , June. 

It  occurred  to  the  two  Governments  that  the  difli- 
ciilty  might  be  dis])osed  of  by  the  exchange  of  diplo- 
matic notes,  which,  in  laying  down  a  definite  rule  of 
reciprocal  international  i-ight  uu  the  subject  of  such 
losses,  should  reserve  or  leaNC  iniim])aired  the  present 
pretensions  of  both  Governments.  The  British  Gov- 
ernment would  not  admit  that  it  was  the  intention 
of  the  Treaty  to  cover  uational  losses;  the  Tnited 
States  insisted  that  it  was,  and  refused  to  do  any  act 
incompatible  with  this  construction  of  the  Treaty; 
and,  therefore,  they  would  not  withdraw  any  part  of 
the  American  Case,  nor  disavow  the  opinion  that  it 
was  within  tha  province  of  the  Arbitiators  to  consid- 
er all  the  claims,  and  to  determine  the  liability  of 
Great  l^ritain  for  all  the  claims,  which  had  been  put 
forward  by  the  Ignited  States.  But  the  American 
Governnv^'t  had  not  asked  for  pecuniary  damages  in 
its  "Case"  on  account  of  that  part  of  the  claims  called 
the  indirect  losses;  it  only  desired  a  judgment  there- 
on, which  would  remove  them  for  all  future  time  as  a 
cause  of  difference  between  the  two  Govei'nments. 
To  hold  that  this  class  of  claims  was  not  disposed  of 
l)y  the  Treaty, — that  is,  was  not  a  subject  for  the  con- 


■V 

■  % 

■■.1 

■I 


ALABAMA   (  LAIM 


<;;{ 


•* 

■•;i 


'  -^ 


j-iclL-ratloii  of  tlicTiihunal  of  Arbitration, — was  to  infer 
tliat  they  remained  open  and  nnadjusted,  and  siiseop- 
ti))le  of  being  hereafter  brought  forward  anew  by  the 
Tnital  States  as  an  ol»jeet  of  reehunation  against 
(Jreat  Ihitain.  One  great  in(bieenient  to  the  Treaty 
would  thus  be  <h'feated,  namely,  the  estal)li>hinent  of 
perfeet  concord  and  peace.  In  view  of  which  it  was 
tliouglit  exiK'dient  to  endeavor  to  adjust  the  present 
dis])ut(!  by  informal  stipuhitions  on  the  })art  of  tlie 
two  (irovernments. 

This  well-intentioned  effort  failed,  because  of  the 
persistent  contention  of  tlio  Hritisli  Government  that 
the  Treaty  exchided  from  the  Arbitration  the  claims 
for  national  losses  advanced  by  the  United  States. 

Further  reflection  on  the  subject  satisfied  the  Amer- 
ican Government  that  nothing  shoi't  of  a  new  treaty 
could  dispose  of  the  question  on  the  premises  of  the 
ix'ndino:  neo-otiation,  it  beinu:  ch'ar  that  the  Pi'esident 
of  the  United  States  couhl  not  of  himself  ir'dluh-mo 
claims  ^vhich  were  in  his  opinion  justified  by  the 
Treaty  of  Washington. 

Thereupon  the  President  requested  of  the  Senate 
an  expression  of  their  disposition  in  regard  to  advis- 
ing and  consenting  to  the  formal  adoption  of  an  arti- 
cle of  treaty  proposed  by  the  British  Government,  to 
the  effect  of  sti])ulating  that  lie  would  make  no  claim 
on  the  part  of  the  United  States  in  respect  of  the  so- 
called  indirect  losses  l)efore  the  Tribunal  of  Arbitra- 
tion, in  consideration  of  an  agreement  between  the 
two  Governments,  the  essence  of  which  was  set  forth 
in  a  preamble  to  the  efi'ect  that 


1 


C4 


IIIK   TUKATV    OF    WASIIINMITON'. 


"Such  indirect  flaiiiis  ;is  those  for  niition:il  losses  staled  iti 
tlie  ( 'use  |ireseiite(l  on  the  j»;irt  ofthe  ( Jo\  eniineiit  of  the  rtiiteil 
States  .  .  .  slioiiM  ii(»t  be  admitted  in  juitieipU!  as  growiiij:;  out 
of  the  act •;  coinmitte*!  by  partic-ular  vessels,  allcLjed  to  have 
been  eiiaiiled  to  eonunit  flepredations  on  the  shippitij^  of  a  bel- 
ligerent bv  reason  of  sueli  want  of  due  diliifcnee  in  the  i)er- 
i'ornianee  (jf  neutral  obliii:;ations  as  that  which  is  imputed  by  the 
United  Slates  to  Great  iirilain  :" 

Avlilcli  ])roj)ose(l  agrei'iiient  tlic  prcaniMc  proceeds  to 
state,  in  the  turiii  of  two  se])ai"ate  deelai'ations, — -one 
l)y  (treat  Jii'itain  and  one  by  the  United  States, — 
each  of  them  intelligiljle  only  Ly  ivteience  to  j)i'e- 
vioiis  parts  of  tlie  preamble:  the  wliole  to  the  con- 
clusion that  the  Pj-esident  shall  make  no  claim,  on 
the  part  of  the  United  States,  in  lespect  of  the  indi- 
rect claims  as  aforesaid,  before  the  Tribunal  of  Arbi- 
tration at  Geneva. 

The  Senate,  thinking  that  the  recitals  in  the  pre- 
andjle  were  not  siiilieiently  cxi)licit  to  fiu-nish  to  the 
Ignited  States  satisfactory  basis  of  transaction,  pro- 
posed the  '' )llowing  svdjstitute: 

"  Will  reas  l)olh  (loverninenls  adopt  for  the  future  the  prin- 
ciple thai  elaims  for  remote  or  indirect  losses  should  not  be 
admitud  as  the  result  of  failure  to  observe  neutral  obligations, 
so  far  as  to  decla.o  that  it  will  hereafter  ouide  the  conduct  of 
both  (Tovernmenls  in  their  relations  Avilh  each  other.  Now, 
therefore,"  etc.- 

But  the  Senate's  r(;daction  of  the  article  rendered 
its  meanino"  too  clear  to  be  ai]^reeable  to  the  British 
Government,  which,  as  was  shrewdly  said  of  it  in 
Paris  at  the  time,  doubted  ^vhether  release  from  claim 
of  reparation  for  the  present  wrong  done  by  Gj-eat 


.m 


AI.AHAMA    CLAIMS. 


<M 


pro- 


I^rilaiii  to  tlu;  riiitccl  S^'lt(^s  iiiiLjlit  not  hv  jmivlKiscd 
too  dearly  hy  coiiccdiiiL^^  to  (lie  I'liitcd  Stjitt's,  in  coii- 
sidcratioii  tlicreof,  iiidclinitc  and  unliiiiitcd  t'X('iM])tion 
from  I'csponsil/ility  for  ^^ron^•s  of  tlie  same  iiatui'(>  to 
l)c  iiiilictcd  ill  all  future  time  ))}•  tlie  United  States 
on  (ireat  Bi'itain. 

Further  iiitei'cliange  of  disp'itclies  on  tliis  subject 
follo\ved,  the  I^iritish  (iovernment  insi-tinir  on  modili- 
cation  of  tlu!  terms  of  ai'rangement  ])roj)osed  ])y  the 
Senate. 

I)ul  Congress  liad  now  adjourned.  The  15tli  of 
June  was  ini])endin<j:, on  which  day  the  United  States 
must  of  necessity  ])resent  their  final  argument  or  lose 
their  hold  on  the  Tr.  ty.  If,  at  tht;  connnencement 
of  the  <lilliculty,  the  liritish  (Jovei'nment  had  i)roi)osed 
to  the  Americ>  i  (iovermnent  to  agree  to  posti)one 
the  in'oceedings  of  the  Tribun.'d  and  take  time  for 
negotiation  in  the  usual  way,  a  new  treaty  mi<dit 
liave  Iteen  concluded  as  contemj)lated  by  the  two 
Governments.  Sucli  a  ti'eaty,  requiring  careful  con- 
sideration of  phraseology,  Avitli  discus.^ion  and  expla- 
nations regarding  the  same,  could  not  be  concluded 
in  haste  ])y  means  of  telegrajdiic  comnnuiication  be- 
tween London  and  AVashinixton. 

The  spectacle  exhibited  by  the  two  Governments 
at  this  time  was  one  of  profound  interest  to  the  whole 
world.  They  were  ins])ired  by  friendly  sentiments  on 
each  side.  They  ditlei'ed  in  I'egard  to  the  construction 
of  a  treaty  which  neither  desired  to  break.  Diplo- 
matic corresj)ondence  had  foiled  to  bring  them  into 
concord  of  opinion.     They  endeavored  to  reconcile 

E 


n 


OG 


THE   TllEATY   OF   WASHINGTON. 


tliis  (lift'ercnce  l)y  suppluineiital  treaty.  Only  a  few 
weeks  remained  in  wliicli  to  negotiate ;  and  tlie 
parties  Avere  se])arate(l  by  tlioi  sands  of  miles  of 
oeean.  It  was  necessary,  therefor*^,  to  negotiate,  if  at 
all,  by  telegraph, — an  o])eration  (piite  as  novel  as  had 
))een  that  of  eonductinii:  the  Inisiness  of  c;overnnient 
in  France  by  means  of  i)igeons  or  balloons  during  the 
siege  of  Paris.  J^ut,  before  it  was  possible  for  the 
pjirties  to  conclude  a  treaty  by  telegraph,  the  fotal 
day  arrived,  greatly  to  the  emljarrassment  of  the 
British  Government. 


<l 


f 

a 


in 


Ki'f 


li 


l!B 


M 


I'RKSEXTATION   OF   ARGU:\IEXTS  FOR   THE  UNFFED   STATES. 

For  the  course  of  the  United  States  in  this  exiijjen- 

CD 

cy  was  ])lain  before  them:  it  was  to  i)resent  their 
final  Argument  to  the  Tribunal  of  Arbitration,  in  con- 
formity witli  their  own  conce})tion  of  their  rights,  just 
as  if  there  were  no  controversy  on  Ihe  point  between 
them  and  Gi'eat  Britain. 

The  President  of  the  United  States  was  immova- 
Ijly  fixed  in  the  purpose  not  to  withdraw  the  contro- 
verted claims,  nor  to  abstain  from  making  claim  be- 
fore the  Trll)unal  in  respect  to  the  so-called  indirect 
losses,  except  in  consideration  of  a  new  treaty  regard- 
ing the  same,  satisfactory  to  himself  and  to  the  Senate 
of  the  United  States. 

In  a  dispatch  of  the  Secretary  of  Stnte  to  the  Min- 
ister at  London,  of  the  2Sth  of  May,  1872,  the  induce- 
ment and  object  of  the  United  States,  in  persisting  to 
retain  these  claims  before  the  Tribunal,  are  summa- 
rily stated  as  follows : 


ALABA^FA   CLADIS. 


or 


10 


rM 


m 


1.  "Tlic  right  under  the  Treaty  to  present  them. 

2.  "To  have  them  disposed  of  and  removed  from  further  con- 
troversy. 

;3.  "To  obtain  a  deelsion  cither  for  or  against  the  liability  of 
a  neutral  for  elaims  of  that  description. 

4.  "If  the  liability  of  a  neutral  for  such  claims  is  aTlmitted 
in  the  future,  then  to  insist  on  i)ayment  by  Great  Britain  for 
those  of  the  past. 

5  "Having  a  case  against  Great  Britain  to  liave  the  same 
])rincii)le  ai»])lied  to  it  that  may  in  the  future  be  invoked  against 
the  United  States." 

Of  these  considerations,  the  last  fotir,  it  is  obvious, 
are  tlie  complete  jtistilication  of  the  insertion  of  our 
national  claims  in  the  Treaty  and  of  their  preserfta- 
tion  in  the  "  Case." 

Hence  the  duty  of  the  Agent  and  Counsel  of  the 
United  States,  having  charge  of  the  judicial  investi- 
gation pending  before  the  Tribunal  of  Arbitration, 
remained  the  same  in  the  interval  between  December 
15th,  1871,  and  June  15th,  1872,  whatever  diplomatic 
discussions  or  neG!;otiations  mi^-ht  be  c^oinG:  on  between 
the  two  Governments.  Our  instructions  were  defi- 
nite and  peremptory,  as  the  British  Government  well 
understood,  to  prepare  the  Counter-Case  for  the  Unit- 
ed States,  and  the  final  Argument,  on  the  j)remises 
of  the  Treaty  as  construed  by  the  United  States  and 
as  explained  in  the  American  Case.  Our  Counter- 
Case  was  prepared  accordingly,  as  already  stated,  and 
filed  in  English  and  in  French  before  tlie  Tribunal. 
And  in  like  manner  we  prepared  our  final  Argument. 

'^J'his  Argument,  consistinp*  of  an  octavo  volume  of 
41>' "  '^ages,  after  discussing  tuUy  the  various  questions 
of  iuct  and  of  law  involved  11  the  submission  to  arbi- 


'-  '.I 


n  \ 


m  ^ 


I    i 


OS 


TIUO    IKKATV    OF    WASHINGTON. 


tration,  proceeds  to  exuniliie  tlie  particular  claims,  na- 
tional as  ^^•ell  as  individual, — to  maintain  the  jurisdic- 
tion of  the  Triljunal  over  both  classes  of  claims, — and 
to  ai'gue  the  natui'e  and  degree  of  the  res])onsibility 
of  (ireat  Britain  to  the  United  States  in  the  premises. 
In  fine,  the  Ai'gument  is  co-extensive  Avith  the  "  Case." 

\V(^  re])aired  to  Geneva  in  due  time,  and  at  the 
meeting  of  the  Tribunal  on  the  ir)th  we  j)resented 
our  Argument  as  re(iuired  by  the  Treaty,  and,  for  the 
better  information  of  the  Tribunal,  in  French  as  well 
as  in  Kn<dish.  That  is  to  sav,  the  (iovernment  of 
the  United  States,  through  the  means  of  its  official 
Agent,  complied  with  that  last  command  of  the  Trea- 
ty of  Washington,  in  virtue  of  which  the  Trilmnal  of 
Arbitration  became  formally  seized  and  possessed  of 
all  our  claims,  national  as  well  as  private,  pi'ecisely  as 
if  no  controvei'sy  on  the  subject  existed  between  the 
two  Governments.  The  United  States  were  in  condi- 
tion to  invoke  the  judgment  of  the  Tribunal,  whether 
Great  Britain  ap])eared  or  not;  for  Counsel  had  am- 
ple authority  of  legal  doctrine  at  hand  to  show  that 
the  Tril)unal  would  have  power  to  act  even  in  the 
absence  of  Great  Britain. 

In  the  anticipation  of  this  contingency,  the  British 
Government  recpiested  that  of  the  United  States  to 
concur  in  making  a  joint  a})j)lication  to  the  Tribunal 
for  an  adjournment  of  eight  months,  in  order  to  afford 
to  the  two  Governments  sufficient  time  for  fui'ther 
negotiation.  Mr.  Fish  replied  that  the  Govermnent 
of  the  United  States  had  no  reason  to  desire  such  ad- 
journmentj  although  tlie  Government  intended,  and 


.:4 


!       I 


i 


ALAlJA.ArA    (  LAIAH. 


(59 


Ma- 
li c- 
lul 

fes. 
7: 


instructed  its  Agent,  to  assent  to  a  motion  for  ad- 
journment on  the  part  of  Great  Britain,  provided  the 
IJritish  Ai'gument  ^vere  fded  in  good  faith,  without 
offensive  notice,  or  otlier  objectionable  accompani- 
ment. 

Thus  it  became  necessaiy  for  the  British  Govern- 
ment to  decide  for  itself  how  to  act  in  the  premises. 
Tlie  course  adopted  l)y  it  was  to  withhold  its  Argu- 
ment, and  to  file  a  statement,  setting  forth  the  recent 
negotiations  for  the  soUition  of  thei  difficulty  between 
tlie  two  (Jovernments,  and  the  ho])e  that,  if  tim<'  were 
afinrded,  such  a  solution  miglit  be  found  practicable;; 
and  tliei'eupon  to  move  an  adjournment  of  eight 
months,  Avith  reserve  of  all  rights  in  the  event  of  an 
agreement  not  being  finally  arrived  at,  as  exjn'essed  in 
the  note  which  accompanied  the  British  Counter-Case. 


j)i:risiox  oi'  tuk  Aunrn^ATous  iiEsriXTixG  national 

LOOSES. 

These  acts  having  been  performed,  the  Arbitj'ators 
adjourned,  first  to  the  ITth,  and  tlien  to  the  10th  of 
June,  in  order  to  afibrd  time  for  reflection  to  them- 
selves and  to  the  two  Governments. 

It  will  be  taken  for  granted  that  in  the  interval  be- 
tween the  ir)tli  and  the  IDtli  of  June  communications 
l)y  telegra])h  passed  betwetMi  tlie  respective  Agents 
and  their  (Tovernments,  and  consultations  took  place 
between  the  Counsel  of  ])oth  sides  and  the  respective 
Agents,  either  orally  or  in  writing,  and,  ^vith  more  or 
less  formality,  among  the  Arbitrators,  the  result  of 
whicli  was  announced  by  Count  Sclopis  as  follows : 


'ift 


70 


TIIK   TREATY   OF    WASHINGTON. 


•'1  ' 


HI 


"The  AiLilrators  do  not  j)ropo.sc  to  express  or  imply  .iiiy 
opinion  upon  tlie  point  thus  in  dirtbrcnce  bctweeti  the  two 
Govenunents  as  to  tlio  interpretation  or  effect  of  tlic  Treaty, 
but  it  seems  to  tliem  obvious  tliat  the  substantial  object  of 
the  adjourinnent  nnist  be  to  give  the  two  Governments  an  op- 
portunity o.'determinintjf  whether  the  claims  in  question  shall 
or  shall  not  be  submitted  to  the  decision  of  the  Arbitrators, 
and  that  any  difference  between  the  two  Governments  on  this 
point  may  make  the  adjournment  unproductive  of  any  useful 
effect,  and,  after  a  delay  of  many  months,  during  which  both 
nations  may  be  ke|>t  in  a  state  of  ])ainful  suspense,  may  end  in 
a  residt  which  it  is  to  be  presumed  both  Governments  Avould 
equally  deplore,  that  of  making  this  arbitration  wholly  abor- 
tive. This  beini!:  so,  the  Arbitrators  think  it  right  to  state 
that,  after  the  most  careful  ])erusal  of  all  that  has  been  ui'ged 
on  the  part  of  the  Government  of  the  United  States  in  respc^ct 
of  these  claims,  they  have  arrived,  individually  and  collective- 
ly, at  the  conclusion  that  these  claims  do  not  constitute,  upon 
the  princij)les  of  international  law  aj)plicable  to  such  cases, 
good  foundation  for  an  award  of  com})ensation  or  computation 
of  damages  between  nations ;  and  should,  upon  such  ])rinci- 
ples,  be  wholly  excluded  from  the  consideration  of  the  Tribu- 
nal in  making  its  award,  even  if  there  "were  no  disagreement 
between  the  two  Governments  as  to  the  competency  of  the 
Tribunal  to  decide  thereon.  With  a  view  to  the  settlement 
of  the  other  claims,  to  the  consideration  of  wliich  by  the  Tii- 
bunal  no  cxcc])tion  has  been  taken  on  the  part  of  Her  IJritan- 
nic  Majesty's  Government,  the  Ai-bitrators  have  thouglit  it  de- 
sirable to  lay  before  the  parties  this  expression  of  the  views 
they  have  formed  upon  the  question  of  public  law  involved,  in 
Order  that,  after  this  declaration  by  the  Tribunal,  it  may  bo 
considered  by  the  Government  of  the  United  States  Avhether 
any  course  can  be  adopted  respecting  the  first  -  mentioned 
claims  which  would  relieve  the  Tribunal  from  the  necessity  of 
deciding  upon  the  present  application  of  Iler  Uritannic  Maj- 
esty's Government."         - 


Count  Sclopis  added  tliat  it  was  the  intention  of 
the  Tribunal  that  this  statement  should  be  consid- 


ALABAMA   CLAIMS. 


ered  for  tlie  present  to  be  confidential, — tliat  is,  sul)- 
ject  to  the  discretion  of  either  of  the  two  Govern- 
ments. 

But  Avliat  is  the  "  question  of  public  hiw  involved  r 
Is  it  the  question  of  claim  for  indirect  or  conse(pien- 
tial  (hiinages,  as  ai'gued  by  the  British  Government  'i 
By  no  means. 

Observe,  no  su^'i^estion  of  any  distinction  betveen 
direct  and  indirect  claims  is  to  be  found  in  the  decla- 
ration of  the  Arbitrators.  And  their  declaration  can 
not  be  explained  by  reference  to  any  such  order  of 
ideas. 

The  sio-nificant  words  are:  "These  claims  do  not 
constitute,  upon  the  ])rinciples  of  international  law 
api)licable  to  such  cases,  good  foundation  for  an  award 
of  compensation  or  computation  of  damages  between 
nations." 

"Why  do  they  not?  Because  they  are  indirect? 
Because  they  are  consequential  ?  No  such  objection 
is  intimated. 

But  although,  in  making  this  declaration,  a  mere 
conclusion  of  mind,  the  Arbitrators  abstained  at  the 
time  from  assigning  any  reasons  for  such  conclusion, 
yet  they  supplied  this  omission  subse(]uently,  as  we 
shall  ])lainly  see  when  we  come  to  review  the  ensem- 
hie  of  all  the  acts  of  the  Tribunal.  We  shall  then  be 
able  to  appreciate  the  inqoortance  and  value  of  this 
declaration  to  the  United  States. 

The  Counsel  of  the  United  States  advised  the  ac- 
ceptance of  this  declaration  by  the  Government,  as 
follows ; 


n-Ti 


I  ! 


72 


THE   TUKATY  OF   WASIIINGTOX. 


!i 


'     I 


"  Wo  arc  of  opinion  lliat  tlic  .innounccmont  this  day  made 
by  tlie  Tribunal  must  bo  roceiveil  by  the  United  States  as  de- 
terminative of  its  jud'jjnient  on  the  cpiestion  of  ])ublic  hiw  in- 
volved, as  to  wliieli  the  I Jiited  States  have  insisted  on  taking 
the  opinion  of  the  Tribunal.  We  advise,  tlierefore,  that  it 
should  be  submitted  to,  as  ])recluding  the  propriety  of  further 
insisting  u]»on  the  claims  covered  by  this  declaration  of  the 
Tribunal,  and  that  the  United  States,  with  a  view  of  maintain- 
i/ig  the  due  course  of  the  arbitration  on  the  (»ther  claims  with- 
out adjournment,  should  announce  to  the  Tribunal  that  the 
said  claims  covered  by  its  opinion  will  not  be  further  insisted 
upon  betbre  the  Tribunal  by  the  Unitecl  States,  and  may  be 
excluded  irom  all  consideration  by  the  Tribunal  in  making  its 
award."' 

Ill  response,  tbe  Secretary  of  State  eoinmiinicated 

the  cleterminatioii  of  tlie  President,  as  follo\vs : 

"I  have  laid  your  telegrams  before  the  Pi'esident,  who  di- 
rects me  to  say  that  he  acce})ts  the  declaration  of  the  Tribunal 
as  its  judgment  upon  a  question  of  public  law,  which  he  had 
felt  that  the  interests  of  both  Governments  required  sIk^uUI 
be  decided,  and  for  the  determination  of  which  lie  had  felt  it 
important  to  present  the  claims  referred  to  for  the  purpose  of 
taking  the  oj)inion  of  the  Ti-ibunal. 

"This  is  the  attainment  of  an  end  which  this  Government 
liad  in  view  in  the  putting  forth  of  those  claims.  We  had  no 
desire  for  a  pecuniary  award,  but  desired  an  expression  by  the 
Tribunal  as  to  the  liability  of  a  neutral  for  claims  of  that  char- 
acter. The  l*resident,  therefore,  further  accepts  tlie  opinion 
and.  advice  of  the  Counsel  as  set  forth  above,  and  authorizes 
the  announcement  to  the  Tribunal  that  he  accepts  their  decla- 
ration as  determinative  of  their  judgment  upon  the  important 
<piestion  of  public  law  as  to  which  he  had  felt  it  his  duty  to 
seek  the  expression  of  their  opinion  ;  and  that,  in  accordance 
with  such  jiulgment  and  opinion,  from  henceforth  he  regards 
tlie  claims  set  forth  in  the  Case  presented  on  the  part  of  the 
United  States  for  loss  in  the  transfer  of  the  American  commer- 
cial marine  to  the  British  tlag,  the  enhanced  payment  of  insur- 
ance, and  the  })rolongation  of  the  "wai-,  and  the  addition  of  a 


I 


ALABAMA   CLAIMS. 


];iri2:f  sum  to  Uic  cost  of  tlie  -war  and  tlu;  stipprcssioii  of  llu- 
l{c'b('llion,as  adjudicjitod  and  disposed  of;  and  that,  coiisoqucnt- 
ly,  they  will  not  be  i'lirtlicr  insisted  upon  belbre  tl«e  Tribunal 
by  tlie  United  States,  but  arc  henceforth  exehided  from  its  con- 
sideration by  the  Ti-i])Uiial  in  making  its  award."' 

Tliis  conclusion  ^vas  announced  to  the  Tribunal  1)y 
the  Aii:ent  of  the  United  States  on  tlie  25th  of  June 
in  the  followino;  woi'ds  : 

"'J'he  declaration  made  by  the  Tribunal,  individually  and 
collectively,  resj)ecting  the  claims  presented  by  the  I'liited 
Slates  for  the  awaril  of  the  Trilninal  for,  first,  the  losses  in  the 
ti'ansfer  of  the  Aniei-ican  commercial  marine  to  the  British  tlag  ; 
second,  the  enhanced  payment  of  insurance  ;  and,  third,  the  pro- 
longation of  the  war,  and  the  addition  of  a  lai-ge  sum  to  the 
cost  of  the  war  and  the  suppression  of  the  Rebellion,  is  acce))ted 
by  the  President  of  the  United  States  as  determinative  of  their 
judgment  upon  the  imjjortant  qucijtion  of  public  law  involved." 

On  the  27th,  the  British  Agent  announced  the  ac- 
(iniescence  of  his  Government  in  this  arrangement, 
withdrew  liis  motion  of  adjournment,  and  filed  the 
British  Aro-ument. 

And  in  this  manner  the  controversy,  which  for  so 
many  months  liad  engrossed  the  attention  of  the  two 
Governments,  was  finally  disposed  of  as  the  Govern- 
ment of  the  United  States  liad  constantly  contended 
it  should  be  [unless  otherwise  settled  l)y  treaty], — 
that  is,  l)y  the  declaration  of  the  jtidgment  or  opinicm 
of  the  Arbitrators,  in  such  form  as  to  constitute,  in 
effect,  a  rule  of  law,  morally  bindinir  on  Great  Bi'itain 
and  the  United  States. 

The  President  of  the  Tribunal,  Count  Sclopis,  then 
proceeded  to  pronotmce  an  ap))ro})riate  and  well- 
written  discourse,  expressing  satisfaction   at  tlu;  re- 


^      *' 


IT 


74 


TIIK   TKEATY   OF   WASIIINGT(»X. 


iiioval  of  all  oLstjiclc'S  to  the  tree  action  of  the  Tiiljii- 
rial,  and  coniinentiiig  on  tlie  ixtlitical  relations  of  the 
Treaty  of  AVashington,  ])re|)aratory  to  the  considera- 
tion of  the  other  cj^uestions  submitted  to  the  ArLitra- 
tors. 


1 1 


SEAT   OF   TIIK   AUIUTIiATIOX. 

And  here,  before  proceeding  to  e.\])lain  and  to  dis- 
cuss the  subse(j[uent  acts  of  the  Tril)unal,  it  seems 
convenient  to  pause,  in  oi'der  to  s])ealv  of  the  scene 
of  action  and  of  the  Tribunal,  to  Avliich  tlic  eyes  of 
all  nations  were  attracted,  and  especially  those  of  the 
jieople  of  England  and  of  America. 

It  was  most  fii  and  pro})er  to  select  Switzerland 
as  the  countiy,  an<l  (leneva  as  the  city,  in  A\hicli  to 
hold  the  sessions  of  the  Tril)\nial. 

In  fact,  Switzerland,  at  the  same  time  that  it  is  the 
land  of  hospitality,  inviting  the  fre([uentation  of  all 
the  world  by  its  picturesrpie  scenery,  tlie  beauty  and 
sublimity  of  its  lakes  and  mountains,  is  also  the  land 
of  neutrality  ^wr  e.vce^Jcnce.  No  other  country  pos- 
sesses in  the  same  degree  these  (pialities  conjoined. 
In  no  other  country  Avas  it  j)ossible  to  avoid  all  in- 
vidious local  suspicion,  and  to  be  exemj)t  from  any 
possible  political  influence  foreign  to  the  objects  of 
the  Arbitration. 

Tlie  s(;lection  was  peculiarly  agreeable  to  tlie 
United  States,  l)y  reason  of  the  striking  similarity 
between  our  institutions  and  those  of  Switzerland. 
Both  Governments  cultivate  a  ])olicy  of  international 
neutrality :  the  one,  by  reason  of  its  isolation  and  re- 


ALABAMA   ri-AIMS. 


75 


luotones.s  from  tlio  Old  AVorld,  and  tlic  otlu;!'  Lccauso 
of  its  geoo'riiphicul  position  in  tlio  midst  ot'  tlie  groat 
military  Powers  of  Kiiropo.  J>otli  (rovci'nmcnts  arc 
fetlcral ;  and  Switzt'i'land,  not  content  with  tliose 
moditications  ot'  lior  system  (»f  government  ado})ted 
in  till!  year  184S,  wliicli  did  so  mueli  to  assimilate 
lier  ])olitical  organization  to  that  of  tlu^  l'nite(l 
States,  now  manifests  the  ])nr])ose  to  amend  tliat 
Constitution  so  as  to  make  it  still  more  like  to  ours. 
In  l)oth  countries  the  force  of  i)u])lic  lite  pervades 
societv  like  the  lilood  in  the  human  svstem,  so  that 
every  citizen  is  an  active  member  of  the  Re]>u1)lic. 
Hence  it  is  impossible  to  an  intelligent  American  to 
avoid  entertaining  warm  sNinpathy  f)r  the  Swiss 
Confederation. 

Geneva  is  a  cosmo])olitan  city,  —  situated  in  tlu; 
very  heart  of  Euro])e, — distinguished  for  the  intelli- 
gence of  its  inha])itants  and  their  love  of  libertv.  It 
is  e////,  in  respect  of  the  commodities  of  life:  it  is 
coil  III  i-iL  in  so  far  as  reu'ards  the  localitv  and  the  sur- 
rounding  natural  objects,  Lake  Leman,  the  Jura,  and 
the  Alps. 

The  Federal  (Government,  as  well  as  that  of  the 
Canton  of  (Jeneva,  a]>preciated  the  honor  of  being  the 
seat  of  this  great  international  Ti'ibunal,  and  did  not 
fail  to  welcome  most  cordially  the  two  drovernments, 
their  Agents  and  their  Counsel,  bv  conspicuous  mani- 
festations  of  political  as  well  as  of  personal  considera- 
tion. The  Cantonal  Government  at  Geneva  hastened 
to  provide  suitable  accommodations  for  theTribunal  in 
the  Hotel  de  Ville  of  that  city;  it  afforded  to  the  meni- 


■  1^ 


70 


TlIK   TKKATV    OF    \VASIlIN(iT()N. 


!■ 


i: 


''      i: : 


1 


i 


Lers  of  tlie  Ti'ibmial  mikI  to  tlic  r('pi'es(!iitati\<'.s  of'llio 
two  Govcriiim'iits  access  to  miinc'rous  ollicial  cxliil)!- 
tioiis  and  ciitci'taiiinH'iits;  and,  at  a  snitablc  time,  it 
made  i'or  ns  a  s[)ecial  festival  at  (Jcncva,  as  tlie  Vvd- 
eral  (Jovcrnnient  did  at  IntcrlaUcn  and  at  Jicfnc. 

Switzerland,  and  (Jeneva  especiall},  looking  at  the 
several  acts  of  arbitration  ])rovided  by  tlu^  Treaty  of 
Washington  as  constitnting  great  ste])s  in  the  prog- 
ress of  j)nl)lie  jx'aee,  Aveleonied  lis  the  more  heai'tily 
because  of  the  recent  oriranization  there  of' a  societ\', 
^^■hose  objects  are  defined  by  its  title  of ''Coniite  In^ 
ternational  de  Secours  aux  Militaires  Blesses.''^  This 
society  had  acquired  iini\'ersal  res])ect  by  its  acts  of 
disinterested  ])hilanthropy  in  the  late  Avar  between 
Germany  and  Fi'ance.  Its  syndjol  of  the  red  cross 
had  been  the  harbinger  of  relief  to  many  a  suffering 
victim  of  battle.  Tt  was  oi'ganized  under  the  Pres- 
idency of  that  General  Dufour  who,  in  1847,  had  led 
to  victory  the  foi'ces  of  Switzerland  against  the  Seces- 
sion I  Sonderbund  |  Cantons.  And  men  could  not  fail 
to  note  the  coincidence,  when  they  saAV  this  great 
Tribunal  of  Arbitration  organized  under  the  auspices 
of  the  victorious  conunander  of  our  own  Union  forces 
[General  (Jrant],  as  the  International  Conunission  for 
the  Succor  of  tlu;  AVounded  had  been  under  the 
auspices  of  the  veteran  (leneral  Dufour.  It  was  im- 
pressive to  see  the  greatest  Generals  of  the  two  coun- 
tries laborino:  to  diminish  the  chances  and  lii-'hten  the 
evils  of  war. 

The  Tribunal  of  Arbitration  occupied  the  same  hall 
in  the  Hotel  de  Ville  whicli  liad  just  before  been  oc- 


ALAIIAMA    (I, AIMS. 


i  ^ 


('iH)i('(l  ])y  tlic  Society  tor  the  Succor  ot'tlio  Wuiiiidcd  : 
[i  j'oom  of  inodcrate  dimensions,  buo  adecjuate  to  tlie 
])ur|)ose,  tilted  up  with  elegance  and  good  taste,  not, 
liowever,  sjieeially  for  tli(3  ("oniniission  or  Tril)unal, 
but  for  ordinary  uses  of  tlie  City  or  Canton,  indicated 
])y  its  title ''Salle  des  Conferences." 

The  Hotel  deVille  is  a  structure  in  the  Floi'cntine 
style  of  architecture,  situated  on  the  summit  of  the 
old  (leneva,  and  ^vhich  is  <)ccuj)ied  both  by  munic- 
ipal ollicers  of  tlu;  City  and  ])y  the  cAecutive  and  leg- 
islative authorities  of  the  Canton. 

(Ol'NT    FUKDKKK'   SCLOl'IS. 

Ilore,  then,  in  the  "Salle  des  Conferences"  of  the 
Hotel  de  Ville,  at  Geneva,  the  Tribunal  assend)led  to 
listen  to  the  o])ening  discourse  of  the  Pi'esident,  Count 
Sclopis,  and  to  take  up  the  business  remaining  for  the 
consideration  of  the  Arbitrators. 

Count  Selo])is,  in  this  discourse,  expressed  belief 
that  the  meetimj:  of  the  Tribunal  indicated  of  itself 
the  im})ression  of  ne^v  direction  on  the  publie  policy 
of  nations  the  most  advanced  in  civilization,  and  the 
commencement  of  an  epoch  in  Avhicli  the  spirit  of 
moderation  and  the  sentiment  of  ecpiity  were  Ijegin- 
ning  to  ])revail  over  the  tendency  of  the  old  I'outines 
of  arbitrary  violence  or  culpable  indiflerence.  lie 
signiiied  regret  that  the  pacific  views  of  the  Congress 
of  Paris  had  not  been  seconded  by  events  in  Europe. 
He  I  .o-ratulated  the  world  that  the  statesmen  wlio 
directed  the  destinies  of  Great  Britain  and  the  United 
States,  with  rare  firmness  of  conviction  and  devotion 


;  ^^  i 


1 

1 

i 

i 

1 

1 


rilK    rUKA'l'V    OK   WASH INt, TON. 


to  tile  interests  of  liiimaiiit\ ,  rcsisliii!;-  all  temptations 
of  vulL;\'ir  aiiiltition,  had  magHMniiiioiisly  and  eoura- 
![i;e<jilsly  traveisctl  in  peace  tlie  (liUlcnlties  Avliieli  li;ul 
divided  tlk'ni  liotli  before  and  since  tla^  conclusion  of 
tiu! 'IVeat}'.  He  ([Uott'd  a]»pi'ovingly  tlic  ojtinion  e.\- 
])i'essed  by  Mr.  (Jladstone,  on  the  one  hand,  and  by 
President  Washington,  on  the  other,  in  commendation 
of  tlie  policy  of  jx'ace,  of  justice,  and  of  lionoi'  in  tlie 
conduct  of  nations.  And  lie  ])rocLnimed  in  behalf  of 
liis  coIle.'iLCues,  as  ancH  as  of  himself,  the  pnr])os(i  of 
the  Tribunal,  actinu'  sometimes  Avitli  the  lai'ge  jx'rcop- 
tion  of  stat(;smen,  sometimes  v.itli  tlie  scriitinizim';  eye 
of  judges,  and  always  \\ith  a  profound  sentiment  of 
e(piity  aiul  with  absolute  inqjartialit}',  thus  to  dis- 
chaig-e  its  high  <luty  of  pacification  as  well  as  of  jus- 
tice to  the  two  (Tovernments. 

The  discourse  was  worthy  of  tlie  occasion  and  of 
the  man. 

Count  Frederic  Sclo])is  of  Saleraiio,  Minister  of 
State  and  Senator  of  the  new  Kingdom  (»f  Italy,  has 
attained  the  ripe  age  of  seventy-four  years  in  the  as- 
siduous cultivation  of  letters,  and  in  the  discharge  of 
the  highest  political  and  judicial  functions.  The 
countryman  and  the  friend  of  C(nint  (\'ivour,  it  -was 
his  fortune  to  co-operate  in  the  task  of  the  unification 
of  Italy  under  the  leadership  of  the  House  of  Savoy. 

This  great  military  House,  with  its  enterprising, 
ambitious,  and  politic  instincts,  second  in  fortune  only 
to  the  Ilabsburgs  and  the  Zollerns,  rose  in  the  elev- 
enth centuiy,  on  the  ruins  of  the  Burgundians,  to  the 
possession  of  the  passes  of  the  Valaisian,  Cottian,  and 


AI.AISAMA    (I, AIMS. 


'0 


(iraiaii  Aljis,  ajid  of  tlio  (J.-iUic  territory  on  Itotli 
shores  of  Luke  J^ciiiaii,  and  at.  h'li^th  to  tlie  ])()ssossion 
<»f  extensive  Italian  territories, (lenoniinate(l  IMedinont 
by  relation  to  tlie  Al]>s  and  tlie  Apennines,  tlio 
nuclens  of  the  i)resent  IvinL;-(h)in  of  Ital\'. 

It  iu'cmIs  to  conceive  and  })icture  to  tlu^  inind's  vya 
t\w,  Alj>ine  cradle  of  this  adventurous  and  martial,  l>ut 
cultivated  rae(.'  of  Italianized  Savoisian  ])i'iiices,  no1)les, 
and  people, — tlie  fertile,  l)Ut  rava^'ed  \alleys  <»f  the; 
Uhone,  the  Arve,  the  iMhai'iiie,  the  Ai'c,  and  the  two 
Doras;  the  castellated  heights  of  I/Kcluse,  Mont- 
in('lian,  and  La  Hrunnetta;  the  vine-clad  hill-sides  and 
the  lofty  ro/s  dominated  by  the  o'iant  i)eaks  of  Mont 
l)lane  and  ^Io!ite  liosa;  the  sepulchral  monuments  of 
TIaute-Cond)e  and  of  IJrou,  and  the  rich  plains  aloni^ 
the  Italian  foot  of  the  Alps, — in  order  to  comprehend 
the  i^cnnvth  to  i^reatness  of  sovereiirns  such  as  Vittorio 
Kmanuele,  sui)])ort(Ml  by  such  c^enei'als  as  ]\b'nabrea 
and  Cialdini,  and  stati^men  and  magistrates  such  as 
Azeii'lio,  l)all)0,  Sclo])is,  and  esjK'cially  Ca\'our. 

Like  his  compatriot,  the  .Manpiis  d^Vzeglio,  Count 
Sclopis  is  eminent  as  an  authoi*.  Of  his  published 
writings,  some  are  in  French,  such  as  ''Marie  Louise 
Gabrielle  de  Savoie"*  and  "Cardinal  ]\[orone."  But 
his  most  ihi])ortant  works  are  in  Italian;  and  above 
all,  the  I'.'arned  "Storia  della  Le<dslazione  Italiana," 
the  last  edition  of  which,  in  five  volumes,  is  a  most  in- 
teresting and  instructive  exhibition  of  the  successive 
stages  of  the  media'val  and  modern  lei^islation  of  all 
the  ditferent  States  of  Ital}^ 

Such  Avas  the  eminent  personage  Avho  i)resided  over 


I, 


1^ 


mr^r^rr'TL. 


80 


TIIK    rUKATV   OK    WASlIIN(iTON. 


,)l    i| 


;  'i 


and  coiulucted  tlio  (It'liberatioii.s  of  tlie  Tri])uiial,  and 
who  r('])resented  and  s])oke  for  it  on  ceremonial  otra- 
sions:  ;i  man  of  lai'ge  statui'e  and  dignified  presence; 
of  tlie  high  l>ree(ling  of  rank,  bnt  without  pretensive- 
ness;  cordial  and  kindly  in  social  intercourse;  tlie 
im})ersonation,  as  it  were,  of  the  intellect  and  the  cul- 
tui'e  of  Continental  Europe. 


^i 


i       ;■ 


MK.  ST.EMPFLT. 

Sittinfj;  bv  the  riii'ht  hand  of  Count  Scl  v,)is,  as  next 
to  him  in  ])recedence,  not  by  reason  of  age, — f(*r  he 
A\as  the  youngest  member  of  the  Tribunal, — but  as 
representing  the  local  (Tovernment,  Switzerland,  Avas 
^Ir.  James  [or,  in  (lerman,  Jacob  |  Sttempfli:  a  genu- 
ine representative  of  democratic  institutions, — sprung 
from  the  people, — the  son  of  his  own  works, — clear- 
headed, strong-minded,  firm-hearted, — someu  hat  })osi- 
tive, — not  ])rone  to  talk  except  when  talk  Avas  of  the 
essence  of  things,  and  then  briefly  and  to  the  point, — 
in  a  word,  a  man  of  the  very  stuff  out  of  which  to 
make  Presidents  of  Federal  Kepublics. 

j\Ir.  Sta'mptli  is  a  German  Swiss  of  the  Canton  of 
Berne,  who  has  risen  from  the  humblest  to  the  highest 
condition  in  liis  country  by  mere  force  of  intellect  and 
indomitable  will.  Born  in  18*20,  admitted  to  the  Bar 
in  184.'?,  he  came  foi'ward  at  once  as  an  advocate,  and 
as  a  journalist  of  radical  oi)inions,  and  speedily  at- 
tained d.^anction.  In  184G  we  find  him  a  conspicu- 
ous memljer  of  the  Council  of  State,  directing  tlie 
finances,  and  laboring  to  organize  a  central  military 
force.     In  1847  he  represented  the  Canton  of  Berne 


ALABAMA   CLAIMS. 


81 


e 


V 


in  the  Diet,  and  was  active  in  asserting:  the  rii]jhts  of 
tlie  Federation  a<i:ainst  the  secedino;  States  of  the 
Sondei'bund.  lie  served  in  that  Avar  Jis  Treasoi'er 
and  Payniaster-Cireneral  of  tlie  Arni}'.  I)is])hiced  for 
a  Avliile,  lie  resumed  tlie  practice  of  his  profession  as 
advocate, but  soon  returned  to  ])ower,  in  1851,  as  Pres- 
ident of  th'^  National  Council,  where  he  continued  to 
})(i  distinguished  as  a  close  reasoner  and  incisive  speak- 
er, full  of  intelligence  and  of  resources,  supported  Ijy 
great  energy  of  character.  In  185G,  he  was  elected 
President  of  the  Confederation,  and  again  in  1850, 
and  the  third  time  in  18G2:  these  repeated  but  in- 
terrupted re-elections  illustrating  the  Swiss  Constitu- 
tion, according  to  which  the  President  is  elected  for 
one  year  only^  and  can  not  be  re-elected  for  the  next 
succeetling  year,  but  is  otherwise  re-eligible  without 
limitation.  Events  of  great  importance  to  Switzer- 
land occurred  in  the  years  of  the  administration  of 
Mr.  St[em})fli ;  among  others,  the  separation  of  Neu- 
chatel  fi'om  Prussia,  the  Avar  in  Italy,  and  the  annexion 
of  Savoy  to  Fi'ance.  His  theoiy  of  executive  action 
Avas  characteristic  of  the  man,  namely, "  When  peril 
is  certain,  it  is  better  to  advance  to  meet  it,  rather 
than  timidly  to  await  its  approach."  In  ^ne^jtrejm- 
mticm  and  dcci.sion  are  the  distinctive  traits  of  all  the 
official  acts  of  Mr.  Stannpfli. 

There  is  one  peculiarity  in  the  political  character 
of  Mr.  Staempfli,  which  belongs  to  him,  indeed,  as  a 
SavIss,  namely,  definiteness  a^nl  affirmativeness  in 
the  mattei'  of  international  neutrality  and  n.orality. 
SAv'tzerland  no  longer  permits  ca])itulations  of  for- 

F 


I 


.:'  r 


82 


THE   TREATY    OF    WASIILNGTOX. 


u\ 


eigu  eiilisluient :  tliey  are  expressly  furi-iddcn  hy  tlio 
Fedei'al  Constitution.  Tier  laws  piinisli  as  a  erinie 
all  vi<ilatioii  l)y  individuals  of  the  international  i-iglits 
of  foreign  Powers.  Her  neutrality  is  active,  not  i)as- 
sive, — preventive,  as  well  as  })un.itive.  She  Las  no 
maritime  relations,  it  is  true  ;  1»ul,  in  dealing  with  un- 
lawful equipments  or  expeditions  l)y  land,  she  ob- 
serves rules  of  neutrality  which  ai'e  ap])lica1)le,  in  the- 
ory and  practice,  equally  to  equi2)nients  or  ex2~>edi- 
tions  for  naval  warfare.  Our  own  tenq)orary  act  of 
1888,  which  comi)reliends  vehicle-'^  [on  landj  and  ve-'S- 
.^el^  [on  Avater]  in  the  same  clause  of  criminality,  af- 
fords comi)lete  answer  to  those  Englishmen  who  have 
superficially  assumed  that  because  Switzerland  is  not 
a  maritime  Power,  she  (or  a  statesman  of  hersj  could 
not  competently  judge  the  case  of  the  AhihcDiia  or 
the  FlondiL  I)ilii*:ence  to  execute  the  law, — vioihmce 
to  prevent  its  violation, — is  the  same  in  Switzerland 
as  in  Italy  or  Brazil,  in  (ireat  Britain  or  the  United 
States.  And  the  position  of  Switzerland,  which  re- 
quires of  her  the  spontaHfous  execution  of  her  neu- 
trality laws,  liad  evident  eflect  on  the  mind  of  Mr. 
Stiempfli  to  produce  those  conclusions  of  his  against 
Great  Britain,  which,  as  we  shall  see  in  the  se([uel, 
were  so  grossly  misapprehended  and  so  angrily  re- 
sented l)y  Sir  Alexander  Cockl)urn. 

At  the  time  when  the  Swiss  Government  invited 
Mr.  StaMnpfli  to  act  as  Arbitrator  for  S\vitzerland 
under  the  Treaty  of  ^Vashington,  he  had  full  occupa- 
tion in  public  or  private  affairs  as  a  member  of  the 
National  Council  and  as  President  of  the  Federal 


] 


i 


ALABAMA    CLAIMS. 


S3 


(Eidgonossischo)  Bank  estaLlislied  at  Berne.  On 
receiving  tlie  respective  "Counter-Cases"  of  the  two 
Governments,  wliicli  in  elfect  closed  tLe  proofs  on 
both  sides,  lie  took  a  characteristic  step  in  order  to 
be  prepared  for  action  in  June. 

As  you  sail  up  the  Lake  of  Thun  toward  Unter- 
seen  or  Interlaken,  you  note  on  the  left  the  precipi- 
tous wooded  mountain-side  of  BeatenberiX.  Here, 
high  up  in  a  I'ui'al  hamlet,  hidden  among  the  trees, 
with  the  beautiful  lakes  of  Thun  and  Brienz  at  his 
feet,  and  the  magnificent  sj)ectacle  of  the  Oberland, 
terminating  at  the  remoter  Berner  Alps, — in  those 
balmy  Alj)ine  days  when  sjiring  is  ])assing  into  sum- 
mer, and  all  earth  is  a  paradise  of  verdure  and  of  ani- 
mation,— here  Mr.  StcTuiptli  secluded  himself  from  the 
social  distractions  and  cares  of  business  at  Berne,  and 
dedicated  himself  to  the  mastery  of  the  '^Alabama 
Claims."  In  such  a  blessed  retreat  even  law-books 
might  lose  their  dullness,  and  diplomatic  correspond- 
ence, depositions,  and  legal  pleadings  be  invested  with 
the  charmed  reflection  of  the  matchless  scenery  of 
lakes,  fields,  hamlets,  cities,  mountains,  and  rivers, 
ixlitterincf  in  the  sun,  and  restin<2:  in  the  horizon  at 
the  snow-crowned  heii]i;hts  of  the  Juno-frau. 

And  so  it  seems  to  have  been.  For  u^ood  St.  Bea- 
tus  blessed  the  mountain  labors  of  ]\Ir.  Stfpmpfli,  and 
he  came  to  Geneva  in  due  time  with  full  abstracts 
of  evidence  and  elaborately  wi'itten  opinions  on  the 
main  questions  at  issue  before  the  Tribunal,  to  the  ap- 
parent surprise  of  KSir  Alexander  Cockburn,  who,  con- 
fidently relying  on  the  rupture  of  the  Arbitration,  as 


■'    ■  1 

■     1 


: 


" 

f 

1 

1 

i 

f 

j 

■ 

1 

84 


THE   TREATY  OF  WASHINGTON. 


lie  Liinself  avowed,  liad  not  yetl3egiin  to  examine  tlie 
cause,  and  seemed  to  suppose  cluit  every  body  else 
ought  to  be  as  neglectfully  ignorant  of  it  as  himself: 
wLicli  sentiment  betrayed  itself  on  various  occasions 
in  the  sittings  of  the  Tribuual. 

VISCOUNT  OF  ITAJUBA. 

On  the  left  of  Count  Sclopis  sat  the  Arbitrator 
named  by  the  Emperor  of  Brazil,  the  Viscount  of 

Itajubii 

The  people  of  the  United  States  do  not  seem  to  Ije 
o-enerally  aware  how  much  of  high  cultivation,  es- 
pecially'[but  not  exclusively]  in  the  departments  of 
diplomacy  and  jurisprudence,  exists  in  those  countries 
of  America  which  ^vere  colonized  by  Spain  and  Por- 
tugal.    Nevertheless,  on  careful  consideration  of  the 
sterling  merits  of  such  historical  writers  as  the  Mexi- 
can Lucas  Alaman,— such  authors  of  international  ju- 
risprudence as  the  Chilean  Bello,  the  Argentine  Calvo, 
or  the  Peruvian  Pando,— such  writers  of  belles-lettres, 
of  travels,  or  of  statistics,  as  the  Colombians  Samper 
and  Perez,— such  poets  as  the  Brazilian  Magalhaens, 
— such  codes  of  municipal  law  as  those  of  the  States 
of  Cundinamarca  and  of  Mexico  or  of  the  Argentine 
Confederation,  and   of  other  Republics   of  Spanish 
America, — we  should  be  compelled  to  admit  that  lit- 
erature and  science  are  not  confined  to  our  part  of 
the  New  World. 

.    And,  among  all  these  new  Powers  of  America,  there 

"  is  not  one  more  deserving  of  respect,— Empire  and 

not  Republic  though  it  be,— th'in  Brazil,  in  view  of 


3 


ALABAMA   CLAIMS. 


85 


>. 


the  ina2:nitiule  of  its  territorv,  the  <2:i'eatness  of  its  re- 
sources,  its  military  streiigtli  aud  successes,  its  eiiliglit- 
ened  and  reforming  chief  ruler,  the  substantial  liber- 
ality of  its  political  institutions,  and  th(^  imbroken 
domestic  tranquillity  of  its  independent  life,  so  strik- 
ingly in  contrast  with  the  revolutionary  agitations  of 
most  of  the  Spanish-American  Kepublies. 

Marcos  Antonio  d'Araujo  belongs  to  that  numer- 
ous body  of  jurists  and  statesmen,  the  natural  growth 
of  parliamentary  institutions  based  on  ])opular  elec- 
tion, who  do  honor  at  the  present  time  to  Brazil.  He 
filled  in  early  life  the  chair  of  Professor  of  Jurispru- 
dence in  the  Universitv  of  l\'rnambuco.  His  first 
dij)lomatic  appointm  'lit  was  that  of  Consui-Gcneral 
of  Brazil  in  the  Ilanst  Towns,  with  residence  at  Ilam- 
l)urg.  After  that  he  held  successively  the  offices  of 
Minister  or  Envoy  at  Ilanovei',  at  Copenhagen,  at 
Berlin,  and  finally  at  Paris.  At  the  time  of  his  ap- 
pointment as  Ar])itrator  he  was  Envoy  Extraordi- 
nary and  Minister  Plenipotentiary  of  Brazil  in  France, 
l)y  the  title  of  Baron  dMtajuba,  and  lie  was  made  a 
Viscount  during  the  progress  of  the  Arbitration. 

With  exception,  therefore,  of  the  judicial  studies 
and  occupations  oP  his  youth,  the  Viscount  of  Itajubd 
is  a  diplomatist,  having  passed  nearly  forty  years  of 
his  life  in  the  discharge  of  diplomatic  functions  in 
different  countries  of  Europe.  lie  possesses  all  the 
qualities  of  his  career  and  station,  namely,  courteous 
and  attractive  manners,  intelligence  disciplined  by  long 
experience  of  men  and  afiairs,  instinctive  appreciation 
of  principles  and  f^icts,  and  the  ready  ex])ression  of 


hf 


■ 


m 


I 


!! 


\    s 


80 


THE   THKATV   OK   WASlIIN(iTON. 


tLouglit  ill  npt  Irtiigiiage,  but  without  tlio  teiult'iicy  to 
run  into  the  path  of  debate  or  ex])usiti()ii,  wliich  ap- 
peared in  the  acts  of  some  of  his  colleagues  of  the 
Tribunal  of  Arbitration. 

In  comparing  Mr.  Stx^mpfli,  ^\•ith  his  deep-bi'own 
complexion,  his  piercing  dark  eyes,  his  jet  black  hair, 
his  (piick  but  supj^ressed  manner,  and  the  Viscount 
of  Itajuba,  with  his  fair  com])lexiun  and  his  air  of 
gentleness  and  aflability,  one,  having  no  previous 
knowledge  of  their  respective  origins,  would  certainly 
attribute  that  of  the  former  to  tro])ical  and  passion- 
ate America,  and  that  of  the  latter  to  temperate  and 
calm-blooded  Euro2)e. 

SIR  ALEXANDEU  COCKBURN. 

On  the  extremes  of  the  Board,  Mr.  Adams  to  the 
right  and  Sir  Alexander  Coekburn  to  tlie  left,  sat 
the  American  and  British  members  of  the  Tribunal. 

Sir  Alexander  Coekburn  represents  a  family  of 
some  distinction,  the  Cockburns  of  Langton.  His 
fother  was  British  Minister  in  Colombia,  and  one  of 
his  uncles  was  that  Admiral  Sir  George  Coekburn, 
whose  service  in  American  w^aters  during:  our  last 
war  with  Great  Britain  has  left  some  unpleasant 
traces  or  memories  in  the  United  States.  Ilis  mother 
seems  to  have  been  a  French  ladv,  l^eino'  described 
by  Burke  as  "  Yolande,  dau.  of  Viscomte  de  Yignier 
of  St.  Domingo.''  He  was  born  in  1802,  called  to 
the  bar  in  1829,  became  distinguished  as  a  barrister, 
entered  Parliament,  and,  after  passing  through  the 
routine  offices  of  Solicitor  and  Attorney  General,  was 


i 


J 


( 


ALABAMA    CLAIMS. 


87 


made  Cliicf  Justice  of  tlie  Court  of  Common  Pleas 
in  185(»,  and  of  tlie  Queen's  l^(Mieli  in  1850,  ^vlliell 
l>laee  he  .still  fills. 

lie  2>i'osided  for  sixteen  years  in  tlie  common-law 
courts  of  England  without  lu'ing  raised  to  the  j>eer- 
age.  It  is  unnecessaiy  to  s])eeulate  on  the  reasons 
for  this  unusual,  if  not  unprecedented  fact. 

His  jxjlltical  career  dates  from  his  zealous  defense 
of  Lord  Palmerston  in  the  affair  cf  tlu^  notorious 
David  Paciiico.  This  person  was  an  adventurer  of 
douljtful  nationality  and  of  bad  ehai'acter,  in  whose 
behalf  the  navy  of  (Jreat  Britain,  under  Lord  Pidmer- 
ston's  direction,  seized  the  Piranis,  captured  (Ireek 
merchant- vessels,  and  threatened  Athens.  The  ground 
of  claim  was  alleged  destruction  of  ])roperty  by  a  mob. 
Pacitico  claimed,  according  to  the  official  statement  of 
the  case  by  the  British  Government,  £401  (5  on  ac- 
count of  furniture  and  other  personal  eflects,  which 
lie  originally  stated  at  only  5000  francs,  and  .£:2(),()18 
10.9.  S(l.  on  account  of  papers.  It  is  very  doubtful 
whether  the  claim  was  a  ])roper  subject  of  interna- 
tional reclamation.  P>ut,  after  a  three  months'  block- 
ade, Greece  submitted  to  pay  X'50O0,  of  which  £4720 
was  either  falsehood  or  consequential  damages;  and 
afterward,  on  examination  of  the  case  in  Lisbon,  a 
commission  awarded  the  petty  sum  of  £150  in  full 
satisfaction  of  the  pretended  loss  of  £20,018,  induced 
perhaps  by  political  reasons  rather  than  by  conviction 
of  any  rights  of  Pacifico. 

The  conduct  of  Lord  Palmerston  and  the  British 
Government  in  this  affair  nearly  involved  Great  Brit- 


4ii 


i 

'"     :* 

i 

■  - 

■  - 

'i 
■) 


m 


\: 


!    I' 


!i:i 


! 


1^ 


88 


THE   TUKATY  OF   WASHLNGTOX. 


aiii  ill  a  Avar  \vitli  Fi'mice  and  Ivussia.  The  Frciicli 
Embassador  retired  from  London  to  Paris  tor  tlie 
j^urpose  of  personal  communication  on  tlie  subject 
witli  liis  Government.  Count  Nesselrode  <>ii  1)(']ialf 
of  Eussia  remonstrated  in  a  dispatcli,  Avliicli  the  Lon- 
don Times  characterized  as  reproachful,  in-efutable, 
and  just,  and  as  profoundly  atfecting  the  peace  of  Ku- 
rope  and  the  dignity  of  Great  Britain.  The  united 
voice  of  F/urope  and  America  has  condemned  the  c(^n- 
duct  of  Great  Britain  in  this  affair.  The  House  of 
Lords  closed  an  historic  debate  by  a  vote  of  censure 
of  the  Government.  In  the  Conunons,  the  last  words 
of  Sir  liobert  Peel  were  raised  in  protest  against  this 
outrage  on  the  rights  of  other  nations ;  the  morn- 
ing dawned  on  a  protracted  session  of  the  House 
before  he  recorded  his  vote  of  condemnation ;  in  the 
afternoon  of  the  same  day  he  met  with  the  accident 
which  closed  his  honorable  life.  Mr.  Gladstone  in  the 
same  debate  said  that  the  claim  was  "on  the  vei'N'  face 
of  it  an  outrageous  fraud  and  falsehood ;''  that  "it 
was  mere  falsehood  and  imposture,'  and  that  "  a  great- 
er ini(piity  had  rarely  been  transacted  under  the  face 
of  the  sun." 

Sir  Alexander  Cockburn  was  then  without  j^arlia- 
mentary  distinction  or  political  advancement.  With 
the  devotion  of  a  Dalgetty,  he  placed  his  lance  at 
the  service  of  a  chief,  regardless  of  the  merits  of  the 
cause.  He  was  soon  rewarded  for  his  services  by 
appointment  to  the  office  of  Solicitor-General,  fr  )m 
■\\  hich  he  was  promoted  step  by  step,  with  \\\h  sam- 
pled celerity,  to  liis  present  position. 


i^ 


■!  ! 


I   \ 


ALABAMA   CLAIMS. 


89 


Siiieo  lie  Ijcc.'iine  tlie  lioad  of  tlio  Queen's  Beiicli  he 
lias  oceasionally  a])pt'are(.l  in  the  iicld  of  letters  on 
questions  connected  Avitli  nninici])al  or  ])ublic  law,  1)ut 
not  in  a  way  U)  invite  i'es})ect  at  home,  or  attention 
l)e\onil  the  limits  ot'iJreat  Britain. 

A  few  years  aiJ:o  he  published  a  nionopjram  on  the 
sulgect  of  nationality,  in  which  Ik;  reproduced  in  an 
abridged  form  [hut  (piite  incorrectly,  as  tlii;  I'emarks 
of  a  most  competent  judge,  Mr.  Beach  Lawi'cnce,  on 
(//■(//'f  <P((i(h((lii(.,  tend  to  show  I  the  matter  contained 
in  the  report  of  a  commission  ai)j)ointed  by  the  (Jov- 
ernment  to  in([uire  into  and  report  upon  the  hnvs  of 
naturalization  and  alleiriance  in  Kni-'land. 

Again,  Avhen  it  was  j)roposed  to  arraign  Nelson  and 
Brand  as  criminals  in  England  for  acts  committed  in 
Jamaica  under  proclamation  of  martial  law.  Sir  Alex- 
ander Cockburn  delivered  a  voluminous  charge  to  the 
grand  jury,  which  he  afterward  })ublished  with  addi- 
tions and  notes,  notwithstanding  the  partiality  and  the 
ui'gency  of  which,  the  grand  jury  refused  to  find  a  bill; 
and  it  must  be  confessed  that,  as  a  chai'ge,  it  Avas  })as- 
sionate,  vague,  declamatory,  and  confused  ;  and  as  an 
exposition  of  law,  it  is  valueless  when  compared  with 
the  treatises  of  j\lr.  Finlason,  in  England,  and  of  ]\Ir. 
AVhitinix,  in  America,  on  the  same  siil/iect. 

This  charge,  and  some  proceedings  by  which  it 
was  followed,  ])rovoked  much  criticism.  Mr.  Ga- 
thorne  Hardy,  for  instance,  called  attention  to  the 
fiict  that  the  Chief  Justice  "  vacillated,"  that  he 
"went  fi'om  one  side  to  another,"  so  as  to  render  it 
doubtful  what  his  o2:)inions  really  were;   and  Mr. 


I  I 


!  \\ 


'.)!» 


TIIK    TKKATV    OF    WASHINGTON. 


I  i 


:    ',1 

f      A 


^H 


Hardy,  ii8  wvW  as  ^Mr.  Mill,  who  spoke  oii  tlie  otluT 
siclc  of  the  general  cj^uestion,  said  that  the  ehai'ge  was 
"not  law,"  and  was  "  without  legal  authority."'  Mr. 
Finlason,  a  most  competent  authority,  said  that,  "al- 
though the  cliargi!  dealt  so  hugely  in  denunciation," 
it  was  'Mitterly  indeterminate  and  indecisive;"  that 
"it  avowed  a  state  of  entire  doubt;"  that,  though 
"there  was  much  denunciation  of  law  laid  down  |  l»y 
others  I,  thei'e  \vas  no  positive  declaration  of  law  laid 
(h)wn  l^y  the  Chief  Justice."  The  same  writer  also 
j)oints  out  gra\e  mistakes  of  history  as  well  as  erj'ors 
of  law  ill  this  char^-e.  Thus,  the  Chief  Justice  as- 
sumes,  as  a  cardinal  thought,  that  nunilal  law  and 
inilitiirtj  law  are  one  and  the  same  thing:  a  mistake, 
which  imj)lies  extraordinary  confusion  of  mind,  for- 
getfuluess  of  his  own  otHcial  opinions  in  the  inci- 
dents of  tlu^  rebellion  in  Ceylon,  and  ignorance  of 
the  most  conmion])lace  events  of  English  history,  for 
instance,  as  detailed  in  JIallam  and  jMacaulay. 

1  allude  io  these  criticisms  for  the  reason  that,  as 
will  appear  in  the  sequel,  the  same  singular  intellect- 
ual traits  and  moral  characteristics  of  the  Chief  Jus- 
tice, which  became  conspicuous  at  Geneva,  had  shown 
themselves  on  the  Queen's  Bench,  and  had  attracted 
the  notice  of  his  fellow-countrymen. 

I  refer  to  this  char2:e  for  another  cause.  It  is  ditii- 
cult  for  many  reasons  to  measure  the  exact  personal 
value  of  ordinary  legal  o])inions  delivered,  in  the 
course  of  adjudication,  by  any  judge  of  the  Queen's 
Bench.  All  such  difficulties  cease  when  he  goes  out 
of  his  way  to  deliver  a  demonstrative  charge  to  a 


ALA  MAM  A   CLAIMS. 


!tl 


) 


i;'i';ui(l  jury  <»n  one  of  tlic  scnii-politii'.'il  (jucstious  of 
tliL'  (lay,  and  c'sjx.'cially  when  sucli  cliai'^'c  is  carct'iilly 
revised  tor  the  Press,  wit ii  adtlitioiis  and  annotations 
])y  liiinselK  Tiien  anc  lia\e  the  most  sati>taL'tory 
means  of  estimating  tlie  mental  cliaraeter  of  tliat 
judge.  And  sueli  is  tlie  eas(!  liere,  to  tlie  efVeet  of 
lowering  greatly  our  estimation  of  the  Chief  Justiee. 

A  latiM'  incident  in  his  judicial  eareer  also  tliro^vs 
some  light  on  liis  eharaeter,  and  deserves  notice  in 
this  connection. 

\\'hen  it  was  propc^sed  to  commence  pi'oceedings 
against  (Jovenior  Vaiv,  ij-rowinif  out  of  what  had 
been  done  in  Jamaica  under  the  same  proclamation, 
]\Ir.  Justice  P)lackljurn  delivered  a  charuje  to  tlie 
grand  jui'y,  in  the  course  of  which  he  said:  "As  to 
the  judges  of  my  own  court,  tlie  Lord  Chi(^f  Justice, 
my  bi'othei'  ]\Iellor,  my  bi'cHher  Lush,  and  my  broth- 
er Hannen, .  .  .  yesterday  J  stated  to  them  the  etl'ect 
of  what  I  am  uow^  stating  to  you,  and  they  all  ap- 
proved of  it,  and  authorized  me  to  say, — of  course,  uot 
relieving  me  from  my  )"esponsil)ility,  or  absolutely 
binding  them,  for  of  course  they  liave  not  considered 
it  so  thoroughly  and  judicially  as  1  have  been 
obli2;ed  to  do, — still  they  authorize  me  to  sav  they 
aizree  in  my  view  of  the  law,  and  thoui-'ht  it  riirht." 
A  week  later,  when  the  case  had  been  entirely  dis- 
posed of,  the  Chief  Justice,  Avhile  sitting  on  the 
Bench,  denied,  with  unseendy  waruith  of  language 
and  manner,  that  he  had  assented  to  the  law  as  laid 
down  by  ]\rr.  Justice  Blackburn ;  but  explained  the 
alleged  ditference  of  opinion   in   such  obscure  Ian- 


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THE   THEATY   OF  WASHINGTON. 


ill 


i  l- 


guage  as  to  render  it  scarcely  intelligible.  i\[r.  flus- 
tice  Blaclvbnrn  replietl.  reiterating  in  temperate  lan- 
guage his  statement  that  the  Chief  Justice  had  ex- 
pressly assented  to  the  legal  doctrine  of  the  charge, 
and  his  colleagues,  Justices  ^lelloi',  Lush,  and  Ilan- 
nen,  gave  no  support  to  the  denial  made  by  the  Chief 
Justice. 

The  qualities  of  character  exhibited  in  this  inci- 
dent were  the  occasion  at  the  time  of  unfavorable 
eommentaiy  on  the  pai't  of  the  British  Press  and 
l)ublic. 

Sir  Alexander  Cockburn  had  seemed,  on  superfi- 
cial view,  a  tit  person  to  take  part  in  the  important 
duties  committed  to  the  Tribunal  of  Arbitration.  He 
carried  thither  the  prestige  of  judicial  rank,  as  the 
head  of  one  of  the  most  venerable  courts  of  Europe. 
And  he  was  thoroui!:li  master  of  the  lano:ua2:e  in 
which  the  discussions  of  the  Tribunal  were  con- 
ducted. 

But,  unfortunately,  it  would  seem  that  neither  the 
original  constitution  of  his  mind,  nor  the  studies,  ])ur- 
suits,  or  liabits  of  his  life,  had  fitted  him  for  calm,  im- 
partial, judicial  examination  of  great  questions  of 
public  law.  The  same  traits  of  confused  thought, 
equivocation  in  matters  of  law,  tendency  to  de(\nma- 
tory  denunciation  of  adversary  opinions,  which  pro- 
voked and  justified  the  criticisms  of  Mr.  Fmlason, 
Mr.  Gathorne  Hardy,  and  others,  and  which  prompt- 
ed conflict  with  Mr.  Justice  Blackburn,  reappeared 
in  more  vivid  colors  at  Geneva. 

Of  the  offensive  singularities  of  his  dqwrtment  as 


ALABAMA  CLAIMS. 


93 


Ai'bitmtor,  wo  sliall  Lave  1nit  too  niucli  necessity  to 
speak  iu  describing  the  acts  of  the  Tribunal. 

MU.  CHARLES    FKAXCIS   ADA:\IS. 

In  the  American  Arbitrator,  Mr.  Charles  Francis 
Adams,  the  Tribunal  had  a  member  worthy  of  the 
com])anionship  of  Count  Frederic  Sclopis. 

In  the  United  States,  persons  have  been  found  so 
foolisli  as  to  reproach  Mr.  Adams  because  of  the  his- 
torical eminence  of  his  father  and  of  his  grandfather, 
and  even  because  of  the  intelligence  and  cultivation 
of  his  sons:  as  if  it  were  a  crime  in  a  Eepuljlic  for  a 
father  to  have  a  good  son,  or  a  son  a  good  father,  or 
to  live  in  the  holy  atmos])here  of  a  suc.ession  of  wise 
and  virtuous  mothers. 

Besides,  if  it  Ite  meritorious  to  rise  to  distinction 
from  lowliness  and  ])overty,  it  is  not  less  so  to  resist 
and  overcome  the  obstacles  to  personal  distinction 
created  by  parental  station  or  wealth.  In  this,  which 
is  the  only  correct  view  of  the  subject,  all  men  are 
selfmade.  The  attributes  of  Mr.  Charles  Francis 
Adams  are  his  own :  distinguished  parliamentary  ca- 
reer iu  the  Le£*;islature  of  the  State  of  Massachusetts 
and  in  the  Congress  of  the  United  States, — literary 
merits  of  a  high  order  as  disj)layed  in  his  "Life  and 
Writings  of  John  Adams,"-^able  diplomatic  repre- 
sentation of  his  Government  in  Great  Britain  during 
the  whole  dark  period  of  our  Civil  War.  lie  pos- 
sessed cpialities,  acquirements,  and  experience,  general 
and  special,  which  seemed  to  invite  his  ap])ointnient 
as  American  Arbitrator ;  and  iu  the  discharge  of  the 


:    I 

i   I 


-:i; 


i  f 


4 


1)4 


THE   TREATY    OK    WASIIIXGTOX. 


(liitios  of  tlio  ofliicc  he  did  lioiior  to  the  Tri^'.in^l  nnd 
to  the  United  States. 

The  depoi'tineiit  of  Mr.  Adiims  as  a  member  '>f  tlie 
Tribunal  was  unexceptionably  dignified,  manly,  cour- 
teous, even  wlien  compelled  on  more  tlian  one  occa- 
sion to  notice  rude  acts  or  words  of  Sir  Alexander 
Cockburn.  While  the  conduct  of  the  h\H'.v  A\as  too 
frequently  on  the  comparatively  Ioav  ])lane  of  the  f/isi 
pritfs  attorney  of  a  party  Ix^fore  a  court,  the  conduct 
of  the  foi-mer  was  uniforndy  on  tlie  higher  one  of  a 
member  of  the  court  and  a  judge.  Hence,  in  the 
same  degree  that  the  i)ersonal  influence  of  IVIr.  Adams, 
by  I'eason  of  his  recognized  impartiality  and  integrity, 
was  beneficial  to  the  United  States,  on  the  other  hand, 
the  influence  of  Sir  Alexander  Cockburn,  by  reason 
of  his  petu.lant  irritability  and  unjudicial  })artisanship 
of  action,  was  unfavorable  to  Great  Britain. 

Such,  then,  were  the  ^Arbitrators  representing  the 
five  Governments. 

SECRETARY   OF   THE   TRIBUNAL. 

Their  Secretary,  Mr.  Alexandre  Favrot,  was  a  gen- 
tlemanly person  of  literary  attainn.ients  and  profes- 
sion, actually  residing  in  Berne,  l)ut  born  in  the 
French-speaking  Canton  of  Neucliatel,  who  had  be- 
come j)erfectly  acquainted  with  the  English  language 
by  a  sojourn  of  several  years  in  England. 

AGENTS   AND   COUNSEL. 

The  Agents  of  the  two  Governments,  Lord  Tenter- 
den  and  >Ir.  Bancroft  Davis,  were  peculiarly  qualified 


ALABAMA   CLALMS. 


05 


fur  tlie  places  they  filled,  Lotli  of  tlieni  liaviiig  served 
in  similar  capacities  in  tlie  foreign  Department  of 
their  respective  Governments,  and  both  having  assist- 
ed in  the  negotiation  of  the  Treaty  of  AVashington. 
Their  friendly  personal  relations  were  advantageous 
in  facilitatiiiijj  the  movement  of  business  before  tlie 
Arbitration. 

i\Ir.  Bancroft  Da\  is  deserves  particular  mention. 
Englishmen  may  (;riticise  the  American  "  Case,"  the 
labor  of  preparing  which  devolved  chiefly  on  him; 
but  its  indisputable  merit  should  draw  to  him  the 
applause  of  every  American.  Ili>.  literary  accom- 
plishments, his  previous  di])loniatic  v'xperience,  his 
knowledge  of  men  and  things  in  Europe,  and  his  de- 
voted and  untiring  attention  to  the  public  interests, 
were  singularly  useful  to  the  United  States. 

Of  the  persons  or  qualities  of  the  Counsel  of  the 
United  States,  Mr.  JMorrison  E.  AVaite,  Mv.  AVilliaiii 
]\I.  Evarts,  and  the  writer  of  this  exposition,  it  would 
be  unbecoming,  as  it  is  quite  su2)eriluous,  here  to 
speak. 

In  this  relation,  however,  it  is  proper  to  call  atten- 
tion to  two  facts  or  incidents  of  national  interest  or 
concernment. 

In  the  first  place,  to  the  honor  of  the  President  of 
the  United  States  be  it  said,  in  the  selection  of  Coun- 
sel by  him,  as  for  instance  in  the  invitation  to  Mr.  B. 
R  Curtis,  considerations  oi party  were  not  allo^ved  to 
exert  controlling  authority. 

Secondl3',  the  Counsel  themselves  emulated  the 
catholic  spirit  of  the  President  in  subordinatiiK^  all 


III 


'       I 


{     M 


VA 


1 


I  v\ 


>*J 


90 


THE  T1U:ATY   of   WASHINGTON. 


personal  coii:5iclerations  to  the  single  oLject  of  win- 
nin'ji:  a  jj^reat  cause,  the  greatest  ever  committed  to  the 
charge  of  members  of  the  Bar,  and  pending  in  the 
higlieso  court  ever  oi'ganiztxl,  namely,  tlie  suit  of 
the  Ujiited  States  ai;ainst  Gi'eat  Britain  before  th" 
Triljunal  of  Arbitration.  Although  diverse  in  their 
habits  of  mind,  and  in  their  lines  of  experience  and 
action,  they  acted  as  a  unit  in  the  determination  of 
advice  to  be  given  from  time  to  time  to  the  Govern- 
ment or  its  Agent ; — in  the  preparation  of  the  printed 
Argument  required  by  the  Treaty,  a  document  of  live 
hundred  pages,'to  be  signed  by  them  jointly; — and  in 
the  subsequent  preparation  of  a  number  of  joint  or 
separate  Arguments  in  conq)liance  with  the  require- 
ments ot  the  Arbitrators.  We  may  appeal  to  those 
Ai'guments  as  the  tangible  proof,  at  any  rate,  of  our 
concurrent  and  united  dedication,  during  nine  months 
of  continuous  and  solicitous  tli(ni2:ht  or  labor,  to  the 
discharge  of  our  duty  to  our  Government  and  our 
country,  as  Counsel  under  the  Treaty  of  Washington. 

Sir  Koundell  Palmer  alone  appeared  before  the 
Tribunal  as  co  nomine  Counsel  of  Great  Britain;  but 
Mr.  Mountague  Bernard,  elevated  to  the  office  of  a 
law-mendjer  of  the  Queen's  Council,  sat  by  his  side  at 
the  Counsels'  table,  and  also  Mr.  Cohen.  The  hand 
of  the  latter  was  apparent  in  the  estimates  and  ex- 
hibits presented  to  the  Tribunal  to  guide  them  in  the 
determination  of  the  damages  to  be  awarded  to  the 
United  States. 

The  recent  promotion  of  Sir  Eoundell  Palmer  to 
-eminent  post  of  Lord  Chaucelloi',  by  the  title 


pr( 


nl 


ALABAMA   CLAIMS. 


D7 


of  Lord  Selborne,  is  tLe  appropriate  consummation  of 
a  professional  and  })arliamentary  career  of  distin- 
guished ability  and  of  unstained  lionor.  In  conduct- 
ing tlie  deliberations  of  the  House  of  Lords;  in  pre- 
siding over  the  High  Court  of  Chauciay ;  in  })artic- 
ij^ating  in  the  aftairs  of  the  Cabinet;  in  guiding  the 
conscience  of  the  Queen  through  the  endjarrassments 
^vhich  now  beset  the  English  Church,  we  may  be  sure 
that  Lord  Selborne  will  join  to  the  high  authority  of 
a  skillful  debater  and  a  learned  jurist  the  still  higher 
authority  of  a  sincerely  conscientious  statesman,  so  as 
to  add  incontestable  force  to  Mr.  Gladstone's  Ministry. 
And  all  that  authority,  we  may  confidently  assume, 
will  be  used  in  the  promotion  o.-  maintenance  of 
amicable  relations  between  Great  Britain  and  the 
United  States. 

This  account  of  the  iwsonnel  of  the  Arbitration 
would  be  imperfect  without  mention  of  the  younger 
but  estimable  persons  who  constituted  the  staff  of 
the  formal  representatives  of  the  two  Governments, 
namely:  on  the  part  of  the  United  States,  Mr.  C.  C. 
Beaman,  as  solicitor,  and  ^lessrs.  Brooks  Adams,  John 
Davis,F.W.Hackett,\V.F.  Pedrick,  and  Edward  T. 
Waite,  as  secretaries ;  and  on  the  part  of  Great  Brit- 
ain, in  the  latter  capacity  or  as  translators,  Messrs. 
Sanderson, Markheim,Villiers,  Langley,  and  Hamilton. 
If  the  labors  of  these  gentlemen  Avere  less  conspicuous 
than  those  of  the  Agents  and  Counsel,  they  were 
scarcely  less  indispensable;  and  they  all  deserve  a 
place  in  the  history  of  the  Arbitration.      -     - — ■ 

A  single  observation  will  close  up  these  personal 

G 


il 


J  !: 


'' 


I' 


!    I 
ii'    I 


!  J'    I 


98 


THE   TREATY   OF  WASHINGTON. 


skotclies,  and  bring  iis  to  the  consideratlou  of  the  ul- 
terior proceedings  of  the  Tribunal. 

Occasionally,  but  not  frequently,  at  the  present  day, 
we  hear  in  the  United  States  ungracious  suGjcjestions 
touching  the  personal  deportment  of  Englishmen.  No 
such  observations,  it  is  certain,  are  justified  by  any  ex- 
perience of  th(^  city  of  Washington.  The  eminent 
persons,  who,  in  the  present  generation,  have  re])re- 
sented  the  British  Government  here,  whether  in  ])er- 
manent  or  special  missions,  such  as  Sir  Richard  Pack- 
enham,  Lord  Napier,  Lord  Lyons,  Sir  Frederick  Bruce, 
and  Sir  Edward  Thornton,  of  the  former  class,  and 
Lord  Ashburton,  the  Earl  of  Elgin,  Earl  De  Grey, 
Sir  Stafford  Northcote,  Mr.  Mountague  Bernard,  Sir 
John  A.  Macdonald,  and  Lord  Tenterden,  of  the  latter 
class,  with  the  younger  persons  of  their  respective 
suites,  and  so  many  others  who  have  visited  this  city, 
w^ere  unmistakably  and  with  good  cause  popular  with 
the  Americans.  Indeed,  it  is  rather  in  Continental 
Europe,  and  especially  in  France,  and  by  no  means 
in  the  United  States,  that  overbearingness  or  un- 
courteous  deportment  toward  others  is  regarded  as  a 
trait  of  Englishmen. 

And  it  is  agreeable  to  remember  that,  of  the  ten 
Englishmen  with  whom  we  of  the  United  States  came 
in  daily  contact  at  Geneva,  and  sometimes  in  circum- 
stances of  contentious  attitude  of  a  nature  to  produce 
coolness  at  least,  all  but  one  were  uniformly  and  un- 
exceptionably  courteous  in  act  and  manner, — and  that 
one  Chief  Justice  of  the  Queen's  Bench. 

Is  a  holder  of  the  office  of  Chief  Justice  emanci- 


i> 


ALABAMA  CLAIMS. 


99 


> 


pated  from  all  social  bonds  ?  It  is  not  so  witli  Chief 
Justices  in  America ;  nor  was  it  so  in  former  days  in 
Great  Britain,  according  to  my  recollection  of  the 
great  judges,  the  Eldons,  the  Tenterdens,  and  the 
Stowells,  ^\  ho  then  presided  over  the  administration 
of  the  connnon  law,  and  of  the  equity  and  admiralty 
jurisjn'udence  of  England.  Has  the  human  race  there 
degenerated?  I  think  not:  no  possible  judicial  ten- 
ure of  office  could  transform  or  deform  a  lloundell 
Palmer  into  an  Alexander  Cockburn. 


I 


EFFORTS  OF  THE  nRITLSII  GOVERNMENT  TO  OBTAIN 

REARGU.AIENT. 

The  Tribunal  and  the  persons  attending  it  are  now 
before  lis,  and  we  resume  its  proceedings  at  the  point 
where  we  left  them,  namely,  the  session  of  the  27th 
of  June,  at  the  close  of  the  address  of  Count  Sclopis. 

The  "Argument,"  filed  in  behalf  of  the  United 
States  on  the  1 5th  of  June,  was  prepared  and  deliv- 
ered in  strict  conformity  with  the  stipulations  of  the 
Treaty.  It  was,  in  effect,  the  closing  argument  on  the 
whole  case,  consisting  of  an  abridged  view  of  the  facts 
on  both  sides  as  presented  in  theii*  "Cases"  and 
"  Counter-Cases,"  with  appropriate  discussion  of  the 
questions  of  law  which  the  claims  of  the  United  States 
involved.  "We  followed  the  ordinary  routine  of  judi- 
cial controversy,  and  the  course  of  common-sense  and 
of  necessity,  in  giving  a  complete  resume  of  our  Case 
in  the  final  "Argument,"  as  contemplated  and  pre- 
scribed by  the  Treaty. 

The  "  Case"  and  "  Counter-Case "  of  each  side  had 


1  1^ 


; 

• 

■ 
i 

■ 

1 

100 


THE  TUEATY    OF   WASIIINUTON. 


siiffic'iontly  indicated  tlie  scope  of  inquiry  or  debate, 
and  defined  its  limits.  Witliin  those  limits  all  j)erti- 
nent  law,  history,  and  reason  lay  at  the  connnand  of 
the  Counsel  of  the  United  States,  as  of  those  of  Great 
Britain.  If  we,  the  Counsel  of  the  United  States,  had 
neglected  at  the  pro])er  time  to  avail  ourselves  of  the 
great  stores  of  knowledge  and  of  reason  accessible  to 
us,  we  could  not  expect  to  supply  the  deficiencies  of 
our  "Argument"'  by  filing  a  new  one  as  the  means  of 
response  to,  a;id  commentary  on,  the  British  "Argu- 
ment." Such  procedui'e  was  not  authorized, — it  was 
plainly  forbidden, — by  the  Treaty. 

It  avails  nothing  to  say  that  the  course  prescribed 
by  the  Treaty  is  uniimal :  such  was  the  will  of  the 
two  Governments.  Doubtless  they  had  good  reasons, 
and  among  them,  perhaps,  was  the  very  ])urpose  of 
not  having  final  "Arguments," — that  is,  the  tJiird  argu- 
ment in  effect  on  both  sides, — consist  of  a  mere  debate 
of  reply  and  rejoinder  betwixt  Counsel. 

Great  Britain  had  no  cause  or  excuse  for  misappre- 
hension in  this  respect,  although  both  Government 
and  Counsel  had,  it  is  true,  fallen  into  the  careless 
way  of  speaking  of  the  "  Summary  "  to  be  filed  on  the 
15th  of  June.  Nay,  the  paper  filed  by  Great  Britain 
is  expressly  entitled  "Argivment  or  Summary.''''  If 
argument  and  summary  are  synonymous  terms,  then 
it  is  tautology  and  bad  taste  to  employ  them  both  to 
designate  the  same  document.  If  they  mean  difierent 
things,  then  it  is  misleading  to  employ  the  term  sum- 
mary at  all ;  for  summary  is  not  the  language  nor  the 
sense  of  the  Treaty.    The  Treaty  requires  each  Agent 


^ « 


'I « 


ALABAMA  CLAIMS. 


101 


to  deliver  "a  Avritteu  or  pi'inted  argument  sLowiiig 
tlie  points  and  referring  to  the  evidence*  upon  wliicli 
bis  Government  relies."  Do  these  words  imply  a 
weak  or  im])erfect  argument?  Do  they  define  tlio 
number  of  ])ages  to  be  oceu]>ied  ?  Do  they  re([uii. 
either  of  tlie  parties  to  leave  out  his  strong  points'? 
Of  course;  not.  And  if  the  Treaty  said  "  sununary," 
— which  it  does  not, — who  shall  say  what  is  a  lit  stn/h 
mart/  of  some  twenty  volumes  of  evidence  and  of  legal 
discussions,  such  as  the  two  "  Cases  "  and  "  Counter- 
Cases"  comprehend?  The  United  States  had  the 
right  to  judge  for  themselves  what  exhibition  of 
"points"  and  what  "evidence"  to  submit  to  the  Ar- 
bitrators. 

The  British  (lovernment  must  have  been  dksati^- 
fied  with  its  own  argument.  That  is  clear,  and  is  the 
only  sufficient  explanation  of  the  earnest  and  persist- 
ent eftbrts  of  Sir  Iloundell  Palmer  to  obtain  permis- 
sion to  reargue  the  cause.  There  was  no  misappre- 
hension on  the  part  of  the  British  Government  as  to 
the  more  or  less  fullness  of  argumentation  admissible 
in  the  so-called  "Ars-ument;"  for  there  is  notable 
similitude  in  this  respect  on  Ijotli  sides  in  the  intro- 
ductory language  of  the  final  "Arguments"  of  the 
two  Governments.  We  believed  at  the  time,  and  all 
the  subsequent  occurrences  tended  to  prove,  that  as 
the  British  Government  had  underestimated  the  force 
of  our  cause  until  the  "  Case  "  came  into  their  hands, 
so  they  did  not  appreciate  the  amplitude  of  our  law 
and  our  evidence  until  they  read  our  "Argument." 

And  strange,  almost  incredible,  though  it  be,  the 


"•■  tktm 


■v 


102 


THE  TIIEATY   UF   WAbllLNliTUN. 


pi  '  I 


British  (Jovornment  would  seem  to  Lave  supposed 
that  the  United  States  were  to  discuss  and  confute 
th(3  British  "Counter-Case"  in  the;  American  "Counter- 
Case;"  that  is,  to  make  rei)ly  to  an  ehiborate  ars^u- 
ment  on  the  hiw  and  the  facts  |  for  such  is  the  British 
"Counter-Case" J  without  seeing  it  or  possessing  any 
knowledge  of  its  contents.  IManifestiy,  no  com])lete 
and  systematic  final  "Argument"  on  the  part  of  the 
United  States  was  possible  without  previous  thouglit- 
ful  knowlediTje  of  the  British  "  Counter-Case."  And 
yet  Sir  lloundell  Palmer,  in  expressing  desire  to  an- 
siver  our  "Argument,"  reasoned  expressly  on  the  im- 
plication that  it  ought  to  have  been  "«  mere  co)tiple- 
'inent  of  2yi'eviouH  documents.'''  No  such  idea  certainly 
is  conveyed  by  the  Treaty ;  and  the  imi)lication  is 
contrary  to  reason  and  the  very  nature  of  things. 

Sir  Iloundell  Palmer  entered  on  tlie  question  the 
moment  it  became  reasonably  certain  that  the  Arbi- 
tration would  proceed.  On  the  29th  of  June  he  pro- 
posed to  us,  informally,  to  arrange  for  reargument  of 
the  cause,  he  to  have  until  the  end  of  the  first  week 
of  August  to  prepare  his  Argument,  and  we  to  the 
end  of  Atigust  to  prepare  a  reply.  The  effect  of  this 
would  be  a  suspension  of  the  sittings  for  more  than 
ten  weeks,  and  a  prolongation  to  that  extent  [and 
perhaps  much  more]  of  the  absence  of  the  American 
Arbitrator,  Agent,  and  Counsel  from  their  country. 
In  ooher  respects  the  proposition  involved  much  in- 
equality; for  it  would  have  given  to  tlie  British 
Counsel  nearly  six  iveeJcs  at  his  own  home  in  London, 
watli  books,  assistants,  translators,  and  printing-oflices 


ALABAMA   CLAIMS. 


urn 


at  liin  coiiiniiind, — in  a  word,  tlio  wliolc  force  of  the 
Briti.sli  (foverniiieiit  at  liis  Ijack,  in  which  to  write 
and  i)rint  his  Argunieiit ;  while  it  would  have  afforded 
to  the  American  Counsel  les>(  than  fauv  ireeJcs  for  the 
same  task,  in  which  to  prepare  and  print  our  Argu- 
ment in  l)oth  languages,  with  no  liljraries  at  hand,  no 
translators,  no  printers,  thrown  wholly  on  our  per- 
sonal resources  away  from  home  in  the  heart  of  Eu- 
ro])e. 

The  Counsel  of  the  United  States  desired  no  re- 
arii^umen.  of  the  cause.     AVe  found  nothinur  in  the 

kJ  CD 

British  Argument  which  we  had  not  antici2)ated  and 
disposed  of  to  our  own  satisfaction.  Not  that  we 
feared  reaigument:  on  the  contrary,  we  felt  such  com- 
plete confidence  in  our  rights  a  ^o  be  sure  not  to  lose, 
and  to  hope  rather  to  gain,  Airther  discussion. 
Hence  we  did  not  desire  nor  seek  reargument,  al- 
thongli  perfectly  ready  for  it  if  called  upon  in  con- 
formity with  the  Treaty.  Our  objections  were  to  the 
delay  and  to  the  departure  from  the  conditions  of  the 
Treaty. 

According  to  the  explicit  language  of  the  Treaty, 
"  the  decision  of  the  Tribunal  shall,  if  possible,  be 
made  within  three  months  from  the  close  of  the  ar- 
guments on  botli  sides;"  and  the  prescri])ed  day  "for 
the  close  of  the  arguments  on  both  sides"  is  the  loth 
of  June.  Suppose  that,  by  agreement  of  the  two  Gov- 
ernmer  , — it  could  not  be  done  by  Counsel  without 
consent  of  their  Governments,  —  "the  close  of  the 
arguments"  had  been  postponed  to  the  31st  of  Au- 
gust, as  proposed  by  Sir  lloundell  Palmer.     In  that 


•i. 


( 


w>  > 


ill 

pi 


ill 


tji 


104 


THE   TREATY  OF  WASHINGTON. 


event  the  Arbitrators  could  not  in  reason  or  decency 
have  commenced  their  deliberations  until  the  1st  of 
September ;  they  might  well  have  taken,  as  they  did 
in  fact  take,  three  months  to  complete  their  delibera- 
tions; and  thus  the  Arbitrators  and  the  American 
Counsel  [but  not  the  English]  would  have  been  de- 
tained at  Geneva  until  the  1st  of  December,  and  there- 
fore would  not  have  been  able  to  reach  their  homes 
until  January. 

But  the  reargument  proposed  by  Sir  Roundell 
Palmer  was  contrary  to  the  Treaty,  which  in  express 
terms  closes  th3  rights  of  the  two  Governments  as  to 
hearing,  and  admits  further  discussion  on  their  part 
only  at  the  requisition  of  the  Arbitrators,  "  if  tliey 
desire  further  elucidation  in  regard  to  any  point." 
[Art.  v.]  Which  manifestly  intends,  not  reargument 
of  the  cause,  but  solution  of  any  doubt,  which,  after  the 
completion  of  the  arguments,  may  occur  to  the  Tri- 
bunal. No  consent  of  Counsel  could  annul  the  sti]!- 
ulations  of  the  Treaty. 

Of  course,  for  reasons  of  right  as  well  as  expedien- 
cy, we  declined  to  accede  to  the  proposition  of  S"r 
Roundell  Palmer. 

ISTevertheless,  at  the  meeting  of  the  27th,  immedi- 
ately after  the  conclusion  of  Count  Sclopis's  discourse, 
Lord  Tenterden  presented  a  motion  on  the  part  of 
Sir  Koundell  Palmer  for  leave  to  file  a  written  align- 
ment in  answer  to  the  Argument  of  the  United  States 
delivered  on  the  15th,  and  requesting  adjournment 
for  that  purpose  until  August.  Sir  Eoundell  Palmer 
read  a  brief  of  the  points  he  desired  to  argue,  which 


I  1 


ALABA.VA   CLAIMS. 


105 


covered  in  effect  all  the  points  of  the  American  "  Case  " 
and  "  Argument,"— that  is  lo  say,  it  implied  a  com- 
plete reargument  of  the  whole  cause.  It  amounted 
to  assuming  or  admitting  that  no  sufficient  or  proper 
defense  had  yet  been  made  by  the  British  Govern- 
ment. 

We,  in  behalf  of  the  United  States,  proceeded  to 
prepare  a  reply  to  this  motion.  We  took  it  up 
point  by  point,  and  showed  by  ^-itation  of  pages  that 
every  one  of  the  proposed  points  had  been  largely 
and  amply  discussed  already  by  Great  Britain  in  her 
"  Case,"  "  Counter-Case,"  and  "  Argument ;"  that  notli- 
ing  new  could  be  said  on  these  points ;  and  that,  in 
fact,  the  very  object  proposed  was  to  reiterate  ar- 
guments already  adduced,  but  to  do  it  in  the  inad- 
missible form  of  mere  criticism  of  the  American  Ar- 
gument.' And  we  cited  the  Treaty  to  show  that  the 
discussion  proposed  was  contrary  to  the  explicit  con- 
tract of  the  two  Governments. 

Meanwhile  the  Tribunal  proceeded  to  decide,  on 
suggestion  of  Mr.  Adams,  that  the  proposed  argument 
was  inadmissible,  and  that  Counsel  had  no  right  to 
address  the  Tribunal  unless  required  by  it  so  to  do 
for  the  elucidation  of  any  point  under  the  5th  article 
of  the  Treaty. 

At  the  next  meeting  of  the  Tribunal,  on  the  28th, 
Sir  Alexander  Cockburn  presented  a  list  of  eight 
points  covering  in  effect  the  points  of  the  rejected 
motion  of  Sir  Roundell  Palmer,  and  moved  tliat  the 
Tribunal  require  of  the  Counsel  of  the  two  Govern- 
ments written  or  printed  arguments  on  the  said  points; 


f      I    'f 


( 


100 


THE  TREATY  OF  WASHINGTON. 


.,:|- 


p.i'  ; 


but  the  Tribiinul  decided  nut  at  present  to  require 
sucli  aro;unients. 

AVlietlier  the  motion  of  Sir  Alexander  CockLnrn 
was  prompted  by  Sir  Koundell  Pahner,  in  order  to 
atlbrd  to  the  latter  the  desired  opportunity  to  criti- 
cise the  American  "  Argument," — or  whether  it  was 
a  spontaneous  one  arisiug  from  the  former\s  not  hav- 
ing studied  the  case,  and  his  consequent  ignorance  of 
the  fact  that  most  of  the  questions  proposed  had  al- 
ready been  amply  and  sufficiently  discussed  by  both 
Governments, — does  not  distinctly  appear.  Proba- 
bly both  motives  co-operated  to  induce  the  motion. 
Subsecjuent  incidents  throw  some  light  on  this  point. 
Meanwhile  it  was  plain  to  infer  from  the  observa- 
tions of  the  other  Arbitrators,  and  from  their  deci- 
sion, that  they  were  better  informed  on  the  subject 
than  Sir  Alexander  Cockburn. 


f  : 


! 


i     M 


RULES  CONCERNING  THE  CONFERENCES  OF  THE  TRIBUNAL. 

The  Tribunal  next  decided  that  the  Agents  should 
attend  all  the  discussions  and  deliberations  of  the 
Conferences,  accompanied  by  the  Counsel,  except  in 
case  where  the  Tribunal  should  think  it  advisable  to 
conduct  their  discussions  and  deliberations  with  closed 
doors.  The  practical  eftect  of  this  resolution,  when 
connected  with  a  resolution  adopted  at  a  subsequent 
meeting  in  regard  to  the  course  of  proceeding,  was  to 
enable  and  require  the  Agents  and  Counsel  to  assist 
at  the  judicial  consultations  of  the  Tribunal :  it  being 
understood,  of  course,  that  none  others  should  be  pres- 
ent save  the  rer>resentatives  of  the  two  Governments. 


1 


ALABAMA   CLAIMS 


107 


m 


The  Tribunal  then  autliorized  puLlicity  to  be  given 
to  its  declaration  and  to  tlie  declarations  of  the  two 
Governments,  relative  to  the  national  claims  of  tlie 
United  States:  after  wliicli  it  adjourned  to  the  loth 

of  July. 

Heretofore,  either  by  intimation  to  the  Secretary, 
and  to  the  Agents  and  Counsel,  or  by  formal  resolu- 
tion, the  Tribunal  had  signified  its  desire  that  the 
proceedings  should  not  be  committed  to  publicity, 
unless  by  the  will  of  the  respective  Governments. 
Of  course,  reporters  for  the  Press,  and  other  persons 
not  officially  connected  with  the  Arbitration,  were  ex- 
cluded from  the  sittings  of  the  Tribunal.     This  re- 
serve or  secrecy  of  proceeding  was  inconvenient  to 
the  many  respectable  representatives  of  the  Press  of 
London  and  New  York,  persons  of  consideration,  who 
had  come  to  Geneva  for  the  purpose  of  satisfying  the 
public  curiosity  of  the  United  States  and  of  England 
regarding  the  acts  of  the  Tribunal ;  but  was  dictated, 
it  Avould  seem,  rather  by  considerations  of  delicacy 
toward  the  two  Governments,  than  by  any  reluctance 
on  the  part  of  the  Arbitrators  to  have  their  action 
made  known  day  by  day  to  the  world.     It  was  a  tri- 
bunal  of  peculiar   constitution    and   character;   its 
members  were  responsible  in  some  sense  each  to  his 
own  Government,  and  also  to  the  opinion,  at  least,  of 
the  litigant  Governments ;  its  proceedings  were  not 
purely  judicial,  but  in  a  certain  degree  diplomatic ; 
and  a  large  part  of  the  proceedings  Avere  in  the  na- 
ture not  so  much  of  action  as  of  judicial  consultation, 
which  it  mif^ht  well  seem  unfit  to  communicate  to  the 


108 


THE   TREA'IT   OF   WASHINGTON. 


1 


I 


general  public  as  tliey  occurred,  altliougli  perfectly  fit 
to  be  thus"  communicated  to  the  respective  Govern- 
ments. 

The  Tribunal  reassembled  on  tlie  lotli  of  July. 
Do^vn  to  this  time  all  tlie  proceedings  of  the  Arbitra- 
tors were  in  their  nature  public  acts,  or  they  have 
been  made  public  through  the  respective  Govern- 
ments.   All  such  acts  were  recorded  in  the  jirotocols. 

Hereafter,  we  shall  have,  in  addition  to  the  acts  of 
the  Tribunal  recorded  in  protocols,  a  series  of  pro- 
visional opinions,  which  ^viive  also  printetl  and  dis- 
tributed [or  should  have  been]  according  to  ex2->ress 
order  of  the  Tribunal.  These  oi:)inions  of  the  Arbi- 
trators, as  Avell  as  their  official  acts,  have  alread}^  been 
made  public  by  both  Governments. 

But,  incidentally  to  sucb  acts  and  opinions,  there 
was  mucli  oral  debate  from  time  to  time  at  the  suc- 
cessive Conferences  of  the  Tribunal.  At  these  de- 
bates, the  Agents  and  Counsel  of  botli  Governments 
w-ere  required  to  assist,  by  resolution  of  the  Tribunal. 
Assisting,  we  necessarily  heard  what  Avas  said  by  the 
respective  Arbitrators.  We  w^ere  expected  to  hear, 
it  is  presumable,  and  also  to  understand :  otherwise, 
why  required  to  attend  ? 

Are  these  debates,  w^hich  occurred  in  the  presence 
of  so  many  persons,  Agents,  Counsel,  and  others,  to  be 
regarded  as  confidential  and  unfit  to  be  disclosed  now? 
Forget  them,  we  can  not,  even  if  copious  notes  of  the 
most  important  debates  did  not  exist  to  aid  and  cor- 
rect mere  memory.  Is  it,  then,  improper  to  speak  of 
them  ?     I  think  not.     I  conceive  that  any  of  us,  who 


ALxVBAMA   CLAIMS. 


109 


possess  knowledge  of  tliose  debates,  have  perfect  riglit 
to  refer  to  them  ou  all  fit  occasions. 

I  propose,  however,  ou  the  present  occasion,  to  ex- 
ercise this  right  sparingly,  and  tliat  only  in  two  rela- 
tions, namely,  first,  very  briefly,  where  such  reference 
involves  mere  formality,  and  is  almost  inseparable 
from  acts  recorded  in  the  protocols;  and,  secondly, 
with  a  little  more  fullness  at  the  close,  and  with  some 
retrospection,  for  the  purpose  of  explaining  the  final 
act  of  the  British  Arbitrator. 

DISCUSSIONS  OF   THE   TRIBUNAL. 

At  the  meeting  of  the  15th,  discussion  arose  imme- 
diately as  to  the  method  and  order  of  proceeding  to 
be  adopted  in  the  consideration  of  the  subjects  refer- 
red to  the  Tribunal. 

i  Mr.  Stasmpfli  then  suggested  that  in  his  opinion  the 
proper  course  was  to  take  up  the  case  of  some  vessel,' 
as  expressly  required  by  tlie  Treaty,  and  consider 
whether  on  that  vessel  Great  Britain  Avas  responsible 
to  the  United  States.  He  had  directed  his  own  in- 
quiries in  this  way,  and  in  this  way  had  arrived  at 
satisfactory  conclusions.  His  plan  had  been  to  select 
a  vessel,— to  abstract  the  facts  proved  regarding  her, 
—and  then  to  apply  to  the  facts  the  special  rules  of 

the  Treaty. 

Debate  on  this  proposition  ensued  between  Sir 
Alexander  Cockburn,  on  the  one  hand,  and  the  rest 
of  the  Arbitrators  on  the  otaer  hand ;  the  former  de- 
siring to  have  preliminary  consideration  of  "  princi- 
ples," that  is,  of  abstract  questions  of  law,  and  the  lat- 


i  I 


i   3 

'! 
I- 


\      ,' 


:  : 

■  ''.  i 


I 


lU   I       i 


110 


THE  TREATY  OF  WASHINGTON. 


ter  insisting  that  tlie  ti  lie  and  logical  course  was  tliat 
of  the  Treaty,  namely,  to  take  up  a  case,  to  examine 
the  facts,  and  to  discuss  and  apply  the  law  to  the 
facts  thus  ascertained,  as  proposed  by  Mr.  Sta^iopfli. 

Finall}/  it  Avas  concluded,  on  the  proposition  of 
Count  Sclopis,  to  follow  substantially  the  progranuue 
of  Mr.  Sta3mpfli,  that  is,  to  take  up  the  inculpated  ves- 
sels, seriatim,  each  Arbitrator  to  express  an  opinion 
in  writing  thereon,  of  such  tenor  as  he  should  see  fit, 
but  these  opinions  to  \)Q  i^^'ovisional  only  for  the  pres- 
ent, and  not  to  conclude  the  Arbitrator,  or  to  prevent 
his  modifying  such  opinion,  on  arriving  at  the  point 
of  participation  in  the  final  decision  of  the  Tribunal. 

On  the  16th,  consideration  of  the  programme  of 
Mr.  Stfcmpfli  was  resumed.  It  consisted  of  the  fol- 
lowing heads,  which  deserve  to  be  set  forth  here,  in 
order  1:0  show  how  thoroughly  the  subject  had  been 
examined  and  digested  by  Mr.  Stasmpfii. 

"  (A.)  Indications  generales  : 

1.  Question  a  decider. 

2.  Delimitation  des  laits. 

3.  Principes  generaux. 

"  (B.)  Decision  relative  a  chacim  des  croisGurs. 

Observations  preliminaires : 
l.Le  Sumter, 
(a)  Faits. 
{b)  Considerants. 

(c)  Jugement."  , 

I  Follow  the  names  of  the  other  vessels,  with  similar  sub-di- 
vision of  heads  of  inquiry.l 
"  (C.)  Determination  duTribunal  d'adjuger  une  somrae  en  bloc. 
"  (D.)  Examen  des  elements  pour  fixer  une  sorame  en  bloc. 
"  (E.)  Conclusion  et  adjudication  definitive  d'une  somme  en 
bloc." 


ALABAMA  CLAIMS. 


Ill 


The  completeness  and  exactness  of  this  programme 
are  self-evident;  and  by  these,  finalities  it  really  im- 
posed itself  on  the  Tribunal,  in  spite  of  all  objeetion, 
and  ot  occasional  temponiry  departures  into  other 
linis  of  thought.  There  will  bo  occasion  hereafter 
to  remark  on  the  precision  and  concision  of  the  opin- 
ions of  Mr.  Sta^mpfii. 

SIR  ALEXA^^DER  COCKBURN'S  CALL  FOR  REARGUMEXT. 

Sir  Alexander  Cockburn  then  renewed  his  propo- 
sition for  a  preliminary  argument  by  Counsel,  set- 
ting forth  analytically  the  various  objects  of  inijuiry 
involved  in  the  claims  of  the  United  States,  and  con- 

I 

eluding  as  follows :  :    ■• 

"  Tint,  looking  to  the  difficulty  of  these  questions,  and  the 
conflict  of  opinion  which  has  arisen  among  distinguished  ju- 
rists on  the  present  contest,  as  well  as  to  their  vast  importance 
in  the  decision  of  the  Tribunal  on  the  matters  in  .dispute,  it  is 
the  duty,  as  it  must  be  presumed  to  be  the  wish,  of -the  Arbi- 
trators, in  the  interests  of  justice,  to  obtain  all  the  assistance 
in  their  power  to  enable  them  to  arrive  at  a  just  and  correct 
conclusion.     That  they  ought,  therefore,  to  call  for  the  assist- 
ance of  the  eminent  counsel  who  are  in  attendance  on  the  Tri- 
bunal to  assist  them  with  their  reasoning  and  learning,  so  that 
arguments  scattered  over  a  mass  of  documents  may  be  pre- 
sented in  a  concentrated  and  appreciable  form,  and  the  Tribu- 
nal may  thus  have  the  advantage  of  all  the  light  which  can  be 
thrown  on  so  intricate  and  difficult  a  matter,  and  that  its  pro- 
ceedings may  hereafter  appear  to  the  world  to  have  been  char- 
acterized by  the  patience,  the  deliberation,  and  anxious  desire 
for  information  on  all  the  points  involved  in  its  decision,  with- 
out which  it  is  impossible  that  justice  can  be  duly  Or  satisfac- 
torily done. 

"  To  obtain  all  the  assistance  in  their  power  to  en- 


I  )■ 


112 


THE   TREATY   OF  WAFIIINGTOX. 


fA   I 

I! 


able  tLom  to  arrive  at  a  just  and  correct  conclusion," 
—  "to  call  for  the  asshktnct  of  tlie  eminent  coiiUsel 
who  are  in  attendance  on  the  Tiilnina^.  to  aisnd  them 
with  their  reasoninij:  and  leai  nini^:." 

An;  y/^ing  the  proposition,  and  omitting  the  intro- 
ductoi'^  and  concluding  phrases  of  more  or  less  irrel- 
evant and  diffuse  ap])eal  to  extraneous  considera- 
tions, the  essence  of  the  projoosition  is  to  call  on 
Counsel  to  asiiist  the  Tribunal,  "  so  that  arguments 
scattered  over  a  mass  of  documents  may  be  presented 
in  a  concentrated  and  appreciable  form." 

Now,  passing  over  the  looseness  and  inaccuracy  of 
exi:)ression  in  this  statement,  it  plainly  is  incorrect  in 
substance.  The  considerations  of  law  or  fact  neces- 
sary for  the  instruction  of  the  Tribunal  are  not  "  scat- 
tered over  a  mass  of  documents ;"  they  are  "  presented 
in  a  concentrated  .  .  .  form"  [we  do  not  say  apprecia- 
hk,  because  that  is  not  a  quality  intelligible  as  ap- 
plied to  fon}i]  in  the  three  arguments  of  each  of  the 
Governments, — tha^*-  is  to  say,  "  Cases,"  "  Counter- 
Cases,"  and  "  Ai'guments."  The  proposition  betrays 
singular  confusion  of  mind  on  the  part  of  a  msip?'ius 
lawyer  and  judge.  The  subjects  or  elements  of  ar- 
gument are,  it  is  true,  "scattered  over  a  mass  of  doc- 
uments ;"  but  it  is  quite  absurd  to  apply  this  phrase 
to  the  Arguments  themselves,  in  which  the  two  Gov- 
ernments had  each  labored,  we  may  suppose,  to  ex- 
hibit their  views  of  the  law  and  the  facts  in  a  man- 
ner to  be  readily  comprehended  and  appreciated  by 
the  Tribunal.  In  the  Arguments  proper,  i7  ^d  on  the 
loth  of  June,  each  Agent  had,  as  the  Treaty  requires, 


ALABAMA   CLAIMS. 


113 


delivered  "  to  eacli  of  tlie  said  Arlntrators  and  to  the 
Agent  of  the  other  party  a  Avritteu  or  printed  argu- 
ment showing  the  points  and  referring  ^o  the  evi- 
dence on  whicli  his  Government  relies."    These  "  Ar- 
guments "  were  freshly  in  the  possession  of  the  Arbi- 
trators.    To  call  on  Counsellor  the  reason  amgned, 
to  reargue  the  matters  therein  argued,  was  just  as 
unreasonable  as  it  would  be  for  a  judge  i)residing  at 
a  hearing  in  common  law,  equity,  or  admiralty,  to 
call  on  the  counsel,  who  have  just  finished  their  ar- 
guments, to  do  something  for  the  "assistance"  of  the 
Court,— it  would  be  difficult  to  see  what,— to  the  end 
'^  thau  arguments  scattered  over  a  mass  of  documents 
may  be  presented  in  a  concentrated  and  appreciable 
form."     And  if  in  this  case  such  arguments  had  been 
filed  in  print,  it  would  be  natural  for  counsel  to  say 
that  they  had  just  done  the  thing  required  of  them, 
as  the  Court  w^ould  perceive  if  it  would  please  to 
read  those  arguments :  which,  in  the  present  case,  it 
would  seem,  Sir  Alexander  had  neglected  to  do ;  and, 
instead  of  doing  it,  he  had  got  bewildered  by  plung- 
ing unpreparedly  into  the  "  mass  of  documents"  filed 
by  the  two  Governments. 

After  discussion,  the  Tribunal  decided  to  proceed 
with  the  case  of  the  Florida,  according  to  the  pro- 
gramme of  Mr.  StcHcmpfli,  that  is,  in  effect,  overruling 
the  motion  of  Sir  Alexander  Cockburn. 

The  Tribunal,  it  would  seem,  could  not  perceive 
the  advantage  of  discussing  speculative  general  ques- 
tions, as  in  a  moot  court;  and,  more  especially,  ques- 
tions of  law,  which  had  already  been  discussed  abun- 

H 


114 


THE   TREATY   OF   WASHINGTON. 


dantly  in  tlie  aj)propriate  pljicc  and  time,  tLat  is,  in 
the  .successive  Cases  and  Arguments  of  the  two  Gov- 
ernments. 


h 


i ! 


CASE  OF  THE  "FLORIDA"  DECIDED. 

The  Arbitrators  then  met  on  the  1 7tli,  and  pro- 
ceeded to  take  up  tlie  case  of  the  Florida. 

On  motion  of  Sir  Ak^vander  Cockburn,  it  was  or- 
dered by  the  Tribunal  that  the  pi'ovisional  opinions  or 
statements  to  be  read  by  the  Arbitrators  should  be 
printed,  and  distributed  to  the  Arbitrators  and  to  the 
Agents  and  Counsel  of  the  two  Governments. 
■  Mr.  Sta3mpfli's  opinion  or  statement  had  been  read 
already,  and  was  in  print. 

After  some  incidental  discussion  amomx  the  Arbi- 
trators,  Sir  A.  Cockburn  began  the  reading  of  his 
oj)inion  on  the  case  of  the  Florida. 

The  Tribunal  met  again  on  the  19th,  and  Sir  Alex- 
ander Cockburn  proceeded  to  read  another  portion  of 
his  opinion  in  the  case  of  the  Florida. 

Then,  after  some  debate,  caused  by  irregularities  of 
speech  or  conduct  on  the  part  of  Sir  Alexander,  Mr. 
Adams  proceeded  to  read  the  commencement  of  his 
opinion  in  the  matter  of  the  Florida. 

On  the  2 2d,  the  case  of  the  Florida  was  concluded. 
Sir  Alexander  Cockburn  and  Mr.  Adams  completed 
the  reading  of  their  opinions,  and  the  Baron  d'ltajuba 
and  Count  Sclopis  both  read  theirs.  The  result  was 
to  convict  Great  Britain  of  culpable  want  of  due 
diligence  in  the  matter  of  the  Florida  by  the  con- 
current piovisional  opinions  of  four  of  the  Arbitra- 


I'^l 


ALAUAMA  CLAIMS. 


115 


tors,  -svitli  a  dissenting  opinion  from  tlu^  Britisli  Ar- 

biti'Jitor. 

The  Florida,  it  will  Le  rcmem1)oro(l,  was  a  steara 
cnin-boat,  built  at  Liverpool  by  ^liller  it  Sons,  on 
contract  with  the  Confederate  agent  Bullock,  for  t)ie 
warlike   use   of  the   Confederates.      Miller  &  Sons 
falsely  pretended  that  she  was  being  built  for  the 
Italian  Government   by  arrangement  with   IMessrs. 
Thomas  &  Brothers  of  Liverpool  and  Palermo,  one  of 
whom  expressly  and  fraudulently  confirmed  the  false 
representation  of  Miller  &  Sous.     The  British  Gov- 
ernment, although  repeatedly  warned  of  the  iUe<jal 
character  of  this  vessel  by  the  diplomatic  and  con- 
sular authorities  of  the  United  States,  shut  its  eyes 
to  the  transparent  falsehood  and  fraud  of  Miller  & 
Sons  and  of  Thomas,  and  took  no  proper  and  suffi- 
cient measures  to  investigate  her  character  and  to 
prevent  the  violation  of  the  laws  of  the  kingdom. 
She  sailed  from  Liverpool  without  obstruction,  cleared 
by  the  name  of  Oreto,  unarmed,  it  is  true,  but  ac- 
companied by  another  vessel  containing  her  arma- 
ment, called  the  Bahama. 

The  Onto  next  makes  her  appearance  at  Nassau, 
where  she  proceeded  further  to  equip  and  arm  as  a 
man-of-war.  The  naval  authorities  at  Nassau  were 
unanimous  in  denouncing  her  illegal  character,  but 
the  civil  authorities,  perverted  by  their  sympathies, 
could  with  difficulty  be  persuaded  to  act  against  her. 
When  they  did  act,  she  was  acquitted  by  the  local 
Admiralty  Court,  in  the  teeth  of  the  facts  and  the 
law^,  Qither  corruptly,  or  with  inexplicable  ignorance 


1 1  )l 


!i 


I'  i 


lie 


TIIK  TREATY   OF  WASHINGTON. 


of  tlieir  duty  on  ilie  part  of  the  Court  taiid  of  the 
attorney  re^jresenting  the  Government.  No  appeal 
was  taken  by  the  Government. 

The  Oreto  then  threw  off  all  i)retenHions  of  inno- 
cence; she  openly  completed  her  equipment,  arma- 
ment, and  crew,  i)artly  at  one  place  and  partly  at  an- 
other, u*"  ler  the  eye  of  the  colonial  authorities;  and 
proceeded  to  cruise  and  to  make  prizes  as  an  avowed 
man-of-war  by  the  name  oiFlorkla.  MeauAvhilc,  with 
the  illegality  of  her  operations  in  England,  and  also 
in  the  Bahama  Islands,  now  notorious  and  admitted, 
she  continued  to  come  and  go  in  Briti  h  ports,  and  to 
obtain  supplies  there  as  her  base  of  operations,  without 
interference  on  the  part  of  the  British  Government. 

On  these  facts,  the  three  neutral  Arbitrators  and 
Mr.  Adams  convicted  the  British  Government  of  want 
of  due  diligence,  and  of  disregard  otherwise  of  the 
Rules  of  the  Treaty,  notwithstanding  that  the  Florida 
had  entered  and  remained  some  time  in  the  Confed- 
erate port  of  Mobile. 

.  Their  several  opinions  were  precise,  definite,  clear, 
and  with  positive  conclusion,  as  to  all  the  material 
points  of  the  case,  in  favor  of  the  United  States. 
.  Sir  Alexander  Cockburn's  adverse  opinion  was  a 
verbose  special  plea, — which,  while  admitting  all  the 
material  facts  charged,  and  conceding  the  palpable 
fraud  practiced  by  Miller  <fc  Sons  and  Thomas, — the 
original  guilt  of  the  vessel, — the  absurdity  of  the  ac- 
tion of  the  Admiralty  Court  of  Nassau, — the  illegal 
equipments  at  Nassau  and  elsewhere  in  British  ports, 
— and  the  continued  use  of  British  ports  as  a  base  of 


^ 


ALABAMA   CI-AIMS. 


117 


#. 


operations, — couKl  not  discover  in  tlicse  incidents  any 
negligence  or  any  violation  of  neutrality  on  the  part 
of  the  British  (rovernnient.  Sir  Alexanch-r  chos(;  not 
to  reinen'ber  that  the  affair  of  the  Oreto  or  Fbtriila 
was,  from  the  Ix'Lcinniiiic  to  tlie  end,  aceordinc'  to  the 
confession  of  Lord  John  liussell  himself,  a  scandal 
and  a  reproach  to  the  laws  of  Great  Britain,  and  still 
more,  we  may  aihl,  a  scandal  and  a  re])roach  to  cer- 
tain of  the  I^ritlsh  Ministers,  of  whose  lionor  Sir  Alex- 
ander assumes  to  be  th(^  s]>ecial  champion. 

When  Count  Sclopis  had  concluded  tlu'  reading  of 
his  opinion.  Sir  Alexander  Cockburn  '"cnewed  his  mo- 
tion for  the  hearing  of  Counsel ;  but  was  again  over- 
ruled by  the  Tribunal,  which  assigned  for  its  next 
Conference  the  consideration  of  the  case  of  the  Ala- 
hama. 


* 


SPECIAL  ARGUMENTS   ORDERED  ON   CERTAIN   POINTS. 

The  Tribunal  met  again  on  the  2.jth ;  and  the  Bar- 
on d'ltajubtl  then  made  a  precise  and  formal  propo- 
sition, calling  on  the  Counsel  of  Great  Britain  for  a 
written  or  printed  Statement  or  Argument  in  elucida- 
tion of  three  questions  of  law,  namely : 

"  1.  Tlic  question  of  due  diligence  treated  in  a  general  man- 
ner. 

"2.  The  effect  of  commissions  posscsseJt  by  Confederate  ves- 
sels of  war  which  had  entered  into  Britisli  ])orts. 

"  3.  The  supplies  of  coal  furnished  to  Confederate  vessels  in 
British  ports." 

And  with  liberty  to  the  Counsel  of  the  United  States 

to  reply  either  orally  or  in  writing  as  the  case  may  be. 

This  proposition  was  adopted  by  the  Tribunal. 


\ 


til 


w 


If   1 


11   '•  I 


118 


THE   TllEATY   OF   WASHINGTON. 


In  SO  far  as  regards  the  first  point,  the  call  for  Ai  • 
giiment  was  obviously  iiiiluced  by  a  desire  to  put  an 
end  to  the  unseemly  importunities  of  Sir  Alexander 
Cockburn;  for  the  Arbitrators  had  in  eftect  again 
and  again  declaimed  that  in  their  judgment  there  was 
no  occasion  for  elucidation  or  further  discussion  of 
the  general  question  of  due  diligence;  that  the  Tri- 
bunal did  not  desire  any  theoretical  discus'^ions  of 
abstract  questions;  and  that  the  practical  question 
of  due  diligence  had  been  already  discussed  to  satiety 
in  the  several  Cases  and  Arguments  filed  by  the  re- 
spective Governments.  W  e  shall  perceive  in  the  se- 
quel how  well-founded  were  the  objections  of  the  T.  i- 
bunal  in  this  respect;  and  how  devoid  of  any  u^eial 
object  or  purpose  had  been  the  ill-digested  calls  of 
Sir  Alexander  Cocklnirn. 

To  the  other  questions  propounded  by  the  Baron 
dTtajubtl,  no  objection  could  be  mad<^:  they  Avere  fit 
subjects  of  the  "elucidation"  contemplated  by  the 
Treaty. 

CASE  OF  THE  "ALABAMA"  DECIDED. 

The  Arbitrators  then  proceeded  to  read  alphabet- 
ically their  opinions  in  the  case  of  the  Alabama^ — that 
is  to  say,  Mr.  Adams,  Sir  Alexander  Cockburn,  Count 
Sclopis,  and  Mr.  Sta3mpfli  read  argumentative  state- 
ments at  length,  and  the  Baron  dTtajubd  expressed 
his  concurrence  in  the  statement  made  by  Sir  Alex- 
ander Cockburn. 

~  In  this  case  the  Arbitrators  were  unanimously  of 
opinion,  —  the  British  Arbitrator  equally  with  his 


ALABAMA  CLAIMS. 


119 


. 


colleagues —that  the  British  Government  had  been 
giiilty'of  culpable  want  of  the  due  diligence  required,  , 
either  by  the  law  of  nations,  the  Rules  of  the  Treaty, 
or  Act  of  Parliament. 

In  tact,  this  vessel  had  been  built  and  fitted  out  in 
Great  Britain  in  violation  of  her  laws,  with  intent  to 
carry  on  war  against  the  United  States;  evidence  of 
this  fiict  had  been  submitted,  sufficient,  in  the  opinion 
of  the  Law  Officers  of  the  Crown,  to  justify  her  de- 
tention ;  notwithstanding  which,  by  reason  of  absence 
of  due  vigilance,  and  not  without  suspicion  of  conniv- 
ance on  the  part  of  public  officers,  and  with  extraor- 
dinary delay  in  issuing  necessary  orders,  she  was  suf- 
fered to  go  unmolested  ou+  of  the  immediate  jurisdic- 
tion of  the  British  Government.    Her  armament,  sup- 
plies, and  crew  were  all  procureid  from  Great  Britain. 
And,'  in  like  violation  of  law,  she  was  received  and 
treated  as  a  legitimate  man-of-war  in  the  colonial  ports 
of  Great  Britain. 

Sir  i^bxander  Cockburn  was  constrained  to  adnut 
want  of  due  diligence  as  to  th^  case  of  the  Alahama, 
in  three  distinct  classes  of  facts,  each  one  of  which 
sufficed  to  establish  the  responsibility  of  the  British 

Government. 

If  Sir  Alexand  .  had  any  good  ciuse  to  accuse  his 
colleagues,  as  he  did,  of  precipitancy  and  want  of 
knowledge  or  practice  of  law,  because  they  came  to 
provisional  conclusions  in  the  case  of  the  Florida 
without  waiiln;;^  to  hear  Sir  Roundell  Palmer,  surely 
the  British  Government  had  reason  to  attach  the 
same  censure  to  him  in  the  case  of  the  Alabama. 


\ 


120 


THE   TREATY   OF  WASHINGTON. 


How  could  he  presume  to  condemn  Great  Britain  in 
this  behalf,  ignorantly,  blindly,  in  the  dark,  and  with- 
out assistance  of  the  "  reasoning:  and  learninc: "  of  the 
eminent  Counsel  in  attendance  on  the  Tribunal  ? 

But  even  Sir  Alexander  Cockburn  could  no  lonc^er 
resist  the  force  of  conviction,  nor  help  admitting  the 
truth  of  the  allegation  of  the  United  States,  their 
Agent  and  Counsel,  imputing  culpable  negligence  to 
his  Government.  The  United  States  had,  not  with- 
out cause,  brouc:ht  the  British  Government  to  the  bar 
of  public  opinion  and  of  the  Tribunal  of  Arbitration ; 
himself  now  confessing  it,  their  Agent  and  Counsel 
had  not  been  engaged,  as  he  had  charged,  in  prefer- 
ring "false  accusations,  unworthy  of  them  and  of 
their  Government."  And  if  the  proved  and  admit- 
ted truth  of  these  accusations  implies  impeachment 
of  the  pei'sotial  honor  of  any  British  Minister  or  Min- 
isters, that  is  not  the  fault  of  the  American  Govern- 
ment, its  Agent  or  Counsel,  but  of  the  British  Gov- 
ernment, whose  violation  of  neutrality  is  at  length 
conceded  even  by  Sir  Alexander  Cockburn. 

In  the  ultimate  judgment  of  all  the  Arbitrators, 
the  condemnation  of  the  Alahama  and  the  Florida 
carried  with  it  the  condemnation  of  their  respective 
tenders,  namely,  the  Tuscaloosa^  the  Clarence^  the  Ta- 
cony^  and  the  Archer. 


I 


f 


CASE   OF  THE   "SHENANDOAH"  DECIDED. 

There  remained  but  three  vessels  as  to  whose  re- 
sponsibility w^e  had  reason  to  have  hopes,  namel}^, 
the  Georgia^  the  Retribution^  and  the  Shenandoah ; 


I 


ALAI3AI\rA  CLAIMS. 


121 


and  witli  confident  expectation  only  as  to  the  Slieii- 
andoali  after  she  left  Melbourne.  Witliout  pausing 
here  to  consider  particularly  the  Hetnhntlon  and  the 
Georgia,  suffice  it  to  say  that  eventually  they  were 
rejected;  but  the  jSheuandoah,  after  special  explana- 
tions in  writing  submitted  by  the  Counsel  of  the  two 
Governments,  was  held  responsible  by  vote  of  three 
of  the  Arbitrators,  Count  Sclopis,  Mr.  St{©mpfli,  and 
Mr.  Adams.  As  the  Shenandoah,  after  increasing 
her  armament  at  Melbourne,  had  made  many  captui'es 
at  the  very  close  of  the  war,  when  her  cruise  could 
not  be  of  any  possible  advantage  to  tbe  Confederates, 
her  exoneration  by  the  Tribunal  would  have  been 
justly  regarded  by  us  as  an  act  of  great  injustice  to 
the  United  States. 


i*- 


THE   SPECIAL  ARGUMENTS. 

It  reraainn  next  to  speak  of  the  successive  Argu- 
ments of  Counsel  before  the  Tribunal,  as  well  those 
heretofore  indicated  as  others  called  for  in  the  sequel. 

On  the  25th  of  July,  as  we  have  seen,  the  Tri- 
bunal voted  to  require  from  the  Counsel  of  Great 
Britain  a  written  '  r  printed  Argument  touching  cer- 
tain points. 

On  the  29th,  Lord  Tenterden  announced  tliat  he 
had  delivered  the  required  Argument  of  the  British 
Counsel  to  the  Secretary  of  the  Tribunal. 

The  copy  thus  delivered  was  in  manuscript.  As 
subsequently  printed,  it  consists  of  43  folio  pages. 

The  replies  of  the  American  Counsel,  each  of  them 
addressing  the  Tribunal  separately,  were  presented 


122 


THE  TREATY  OF  WASHINGTON. 


on  the  5tli,  Gtb,  and  Stli  of  Angust,  •consisting  alto- 
gether of  47  pages  of  the  same  folio  impression. 

It  would  not  be  convenient,  and  it  does  not  come 
within  my  plan,  to  discuss  the  Arguments  of  Counsel 
on  either  side,  except  where  some  particular  point  of 
such  Argument  calls  for  notice.  Hence,  as  in  the 
case  of  the  genei'al  Arguments  of  April  and  of  June, 
so  as  to  the  special  Arguments  called  for  by  the  Tri- 
bunal, it  will  be  sufficient  to  enumerate  them,  and  to 
give  to  them  their  proper  place  in  the  history  of  the 
Arl)itration. 

T)'^^  first  Argument  of  Sir  Roundell  Palmer,  how- 
ever, calls  for  some  observations. 

Of  his  43  pages,  31, — say  three  quarters, — are  de- 
voted nominally  to  the  question  of  due  diligence  gen- 
erallv  considered.  • 

Now,  in  the  previous  regular  Arguments,  each  Gov- 
ernment had  fully  discussed  this  question,  and  had, 
as  if  by  common  consent,  concluded  in  express  terms 
that  it  neither  required  nor  admitted  any  further  dis- 
cussion. That  conclusion  was  correct.  Accordingly, 
most  of  these  31  pages  are  occupied  with  matters  re- 
motely, if  at  all,  connected  with  the  question,  What 
constitutes  due  diligence  ? — such  as  [copying,  ^vord  for 
word,  sundry  marginal  notes]  rules  and  principles 
of  international  law ;  express  or  implied  engagements 
of  Great  Britain ;  effect  of  prohibitory  municijoal  laws; 
the  three  Rules  of  the  Treaty ;  the  maxims  cited  by 
the  United  States  from  Sir  Robert  Phillimore  on  the 
question,  Civitas  ne  deliquerit  an  cives;  for  what  pur- 
pose Great  Britain  refers  to  her  municipal  laws ;  doc- 


i 


~i 


««l 


ALABAiLV   CLAIMS. 


123 


trine  of  Tetens  as  to  muiiicij^al  laws  in  excess  of  ante- 
cedent international  obligations;  the  arguments  as 
to  tlie  prerogative  powers  belonging  to  the  British 
Crown ;  the  true  doctrine  as  to  the  powers  of  the 
Crown  under  British  law;  the  British  Crown  has 
power  by  common  law  to  use  the  civil,  military,  and 
naval  forces  of  the  Kealni  to  stop  acts  of  war  within 
British  territory;  the  jireventive  powei's  of  British 
law  explained ;  examination  of  the  preventive  pow- 
ers of  the  American  Government  under  the  Acts  of 
Congress  for  the  preservation  of  neutrality : — and  so 
of  diverse  other  questiojis  discussed  by  Sir  Roundell 
Palmer  under  the  head  of  due  diligence  generally 
considered.  Yeiy  genemllf/,  it  is  clear.  Nay,  13  of 
the  31  pages  devoted  to  the  question  of  "due  dil- 
igence generally  considered"  are  occupied  with  ex- 
amination of  the  law^s  and  political  history  of  the 
United  States,  in  continuance  and  iteration  of  the 
groundless  and  irrelevant  accusations  of  the  Ameri- 
can Government  introduced  into  the  British  Case  and 
Counter-Case. 

Now  Sir  Roundell  Palmer  is,  omnium  consensu,  at 
the  head  of  the  British  Bar  in  learninc:.  intellisjence, 
and  integrity;  and  we  may  be  sure  that  arguments 
addressed  by  him  to  the  Tribunal  would  be  the  best 
that  such  a  lawyer,  so  high  in  mental  and  moral  qual- 
ities, or  that  any  living  lawyer,  be  he  who  he  may, 
could  devise  or  conceive.  The  British  Arbitrator  had 
gone  "clean  daft"  in  the  hope  deferred  of  hearing  him. 
He  himself  had  been  earnestly  seeking  to  be  heard 
by  the  Tribunal  for  more  than  a  month ;  he  had  com- 


'■?/■" 


124 


THE  TREATY   OF  WASHINGTON. 


\v 


templatecl  being  lieaivl  for  many  months.  And  the 
result  of  all  this  meditation,  and  of  all  tliis  earnest 
desire  to  serve  his  country,  was  a  series  of  arguments 
mostly  immaterial  to  the  issue,  as  the  final  judgment 
of  the  Tribunal  plainly  shows,  and  coming  in  after  the 
main  question  had  been  actually  settled  in  the  cases 
of  the  Alahcwia  and  the  Florida.  That  is  to  say, — 
and  it  is  in  this  relation  the  point  is  introduced, — 
the  claims  of  the  United  States  rested  on  a  basis 
w^hich  all  the  great  forensic  skill  and  ability  of  Sir 
Iloundell  Palmer  could  not  move, — which  commend- 
ed itself  to  the  confidence  of  .the  neutral  Arbitrators, 
— and  which  even  extorted  the  reluctant  adhesion  of 
the  prejudiced  British  Arbitrator. 

Subsequently,  on  requirement  of  the  Arbitrators, 
we  discussed,  in  successive  printed  Arguments,  the 
special  question  of  the  legal  effect  of  the  entry  of 
the  Florida  into  Mobile ;  the  question  of  the  recruit- 
ment of  men  for  the  Shenandoah  at  Melbourne;  and 
the  question  of  interest  as  an  element  of  the  indemni- 
ty due  to  the  United  States. 


' 


QUESTION  OF  DAIMAGES. 

Meanwhile,  the  Tribunal  had  voted  definitively  on 
the  question  of  the  liability  or  non-liability  of  Great 
Britain  for  the  acts  of  the  cruisers  named  in  the 
"  Case  "  of  the  United  States,  in  the  terms  which  will 
appear  in  explaining  their  final  judgment.  They  had 
also  voted  on  several  of  the  incidental  questions,  such 
as  the  abstract  question  of  due  diligence,  entry  into 
Confederate  ports,  commission,  and  supply  of  coal, 


7t 


'V 


\ 


' 


ALABAMA   CLAIMS. 


125 


raised  by  successive  requirements  of  the  Tribuual. 
They  bad  thus  arrived  at  the  point  of  discussing 
matters,  which  only  affected  the  form  and  the  amount 
of  the  judgment  to  be  rendered  against  Great  Britain. 

And  here,  on  the  2Gth  of  August,  the  Tribunal 
voted  to  deliberate  with  closed  doors,  in  spite  of  the 
objection  of  Sir  Alexander  Cockburn. 

Thenceforth,  and  until  the  final  Conference  of  the 
14th  of  September,  the  Tribunal  sat  with  closed  doors, 
that  is,  without  the  assistance  of  the  Agents  and 
Counsel. 

Down  to  this  time,  the  Agent,  Counsel,  Solicitoi*, 
and  Secretaries  of  the  United  States  had  been  assid- 
uously occupied  in  preparing,  copying,  translating,  and 
printing  Arguments  and  other  documents  for  the  use 
of  the  Tribunal.  And  even  when  the  regular  dis- 
cussions were  ended,  we  had  still  to  attend  to  the 
laborious  task  of  preparing  schedules  of  the  claims 
of  the  United  States  in  response  to  argumentative 
estipiates  filed  by  the  British  Government. 

FINAL  JUDGMENT  OF  THE  TRIBUNAL. 

On  the  9th  of  September  the  Arbitrators  defin- 
itively adopted  the  Act  of  Decision,  which  had  been 
considered  at  the  preceding  Conference,  and  ordered 
it  to  be  printed.  They  also  resolved  that  the  Decis- 
ion should  be  signed  at  the  next  Conference,  to  be 
held  with  open  dt)or3,  and  they  then  adjourned  to  the 
14th. 


^1    ! 


H'l 


«  ; 


W 


V\ 


Ji 


I* 
I 


i<l& 


■   Hi 


i: 
III  I 

If ; '  li  i 
i  i 


I 


12C 


THE  TREATY  OF  WASHINGTON. 


ANNOUNCEMENT  OF  THE  DECISION. 

On  Saturday,  tlie  14th  of  SepteiiiLcr,  the  Tribunal 
assembh'd  at  the  liour  of  adjournment, — halfpast 
twelve  o'clock.  The  Hall  of  Conference  was  crowded 
at  this  liour  with  the  Arbitrators  and  the  c^entlenien 
attached  to  the  Arbitration,  the  ladies  of  their  res2:)ect- 
ive  families,  the  members  of  the  Cantonal  Govern- 
ment, representatives  of  the  Press  of  Switzerland,  the 
United  States,  and  Great  Britain,  and  gentlemen  and 
ladies  among  the  most  estimable  of  the  private  cit- 
izens of  Geneva.  The  day  Avas  beautiful ;  the  scene 
imposing  and  impressive.  But  the  British  Arbitrator, 
Sir  Alexander  Cockburn,  remained  unaccountably  ab- 
sent, while  curiosity  grew  into  impatience,  and  im;)a- 
tience  into  apprehension,  until  long  after  the  pre- 
scribed hour  of  meeting,  when  the  British  Arbitrator 
finally  made  his  appearance. 

The  official  action  of  the  Conference  commenced 
with  the  accustomed  formalities. 

The  President  then  presented  the  Act  of  Decision 
of  the  Tribunal,  and  directed  the  Secretary  to  reajjl  it 
in  English,  which  was  done :  after  Avhich  duplicate 
originals  of  the  Act  were  signed  by  Mr.  Adams,  Count 
Frederic  Sclopis,  Mr.  St^mpfli,  and  Viscount  of  Itajuba; 
and  a  copy  of  the  Decision,  thus  signed,  was  delivered 
to  each  of  the  Agents  of  the  two  Governments  re- 
spectively. • 

Another  original  was  subscribed  in  like  manner,  to 
be  placed,  together  with  the  archives  of  the  Tribunal, 
among  the  archives  of  the  Council  of  State  of  the  Can- 
ton of  Geneva. 


i 


Ilk, 


1 


ALABAMA  CLAIMS. 


127 


Sir  Alexander  Cockhiirn,  as  one  of  tlie  ArLitrators, 
declining  to  assent  to  the  Decision,  presented  a  state- 
ment ot"^  his  "  Reasons  "  which,  without  reading,  the 
Tribunal  ordered  to  be  received  and  recorded. 

Thereupon,  in  an  appropriate  address,  Count  Sclopis 
declared  the  labors  of  the  Arbitrators  to  be  finished, 
and  the  Tribunal  dissolved. 

The  discourse  of  Count  Sclopis  w\as  immediately 
followed  by  salvos  of  artillery,  discharged  from  the 
nei<diborini»:  site  of  La  Treille  by  order  of  the  Can- 
tonal  Government,  with  display  of  the  flags  of  Geneva 
and  of  Switzerland  between  those  of  the  United  States 
and  of  Great  Britain. 

It  is  impossible  that  any  one  of  the  persons  present 
on  that  occasion  should  ever  lose  the  impression  of 
the  moral  grandeur  of  the  scene,  where  the  actual 
rendition  of  arbitral  judgment  on  the  claims  of  the 
United  States  against  Great  Britain  bore  w^itness  to 
the  generous  magnanimity  of  two  of  the  greatest  na- 
tions of  the  world  in  resorting  to  peaceful  reason  as 
the  arbiter  of  grave  national  differences,  in  the  place 
of  indulging  .in  baneful  resentments  or  the  vulgar 
ambition  of  war.  This  emotion  was  visible  on  almost 
every  countenance,  and  was  manifested  by  the  ex- 
change of  amicable  salutations  appropriate  to  the 
separation  of  so  many  persons,  who,  month  after 
month,  had  been  seated  side  by  side  as  members  of 
the  Tribunal,  or  as  Agents  and  Counsel  of  the  two 
Governments ;  for  even  the  adverse  Agents  and  Coun- 
sel had  contended  with  courteous  w^eapons,  and  had 
not,  on  either   side,  departed,  intentionally  or  con- 


1 1 
j  • 


128 


THE  TREATY  OF  WASHINGTON. 


r. 


scioiisly,  from  the  respect  clue  to  tlieinselves,  to  one 
auotlicr,  and  to  tlieir  resi)ective  Governments. 

CONDUCT   OF  THE  lUUTISH   AKIUTUATOK. 

To  the  universal  expression  of  mutual  courtesy  and 
reciprocal  good- will  there  was  but  one  exception,  and 
that  exception  too  conspicuous  to  pass  without  notice. 

The  instant  that  Count  Sclo])is  closed,  and  before 
the  sound  of  his  last  words  had  died  on  the  ear,  Sir 
Alexander  Cockburn  snatched  up  his  hat,  and,  with- 
out participating  in  the  exchange  of  leave-takings 
aiound  him,  without  a  word  or  sign  of  courteous  rec- 
ognition for  any  of  his  colleagues,  rushed  to  the  door 
and  disappeared,  in  the  manner  of  a  criminal  escaping 
from  the  dock,  rather  than  of  a  judge  separating,  and 
that  forever,  from  his  colleagues  of  the  Bench.  It  was 
one  of  those  acts  of  discourtesy  which  shock  so  much 
when  they  occur  that  we  feel  relieved  by  the  disap- 
j)earance  of  the  perpetratoi'. 


i 


III 


I   '!  > 


SIR  ALEXANDER  COCKBURNS   REASONS   FOR  DISSENT. 

The  British  Arbitrator,  who,  so  frequently  in  the 
course  of  the  Conferences,  acted  as  a  party  agent 
rather  than  a  judge,  had  been  occupying  himself  in 
the  preparation  of  a  long  Argument  on  the  side  of 
Great  Britain,  in  which  he  throv/s  off  the  mask,  and 
'professedly  speaks  as  the  representative  of  the  Brit- 
ish Government.  He  withheld  this  Argument  from 
the  knowledge  of  the  Tribunal  at  the  proper  time 
for  its  presentation  as  the  "Keasons"  of  an  Arbitrator. 
At  the  last  moment, — without  its  being  read  to  the 


i 


ALABAMA  CLAIMS. 


129 


*  )* 


Ti'ibuiiJil,  or  i)i'iiited  tor  the  iiitorniation  of  Agents 
and  Counsel,  as  a  resolution  of  the  Tril)unjil,  adopted 
on  Lis  own  motion,  re(iuired, — lie  presents  this  Ai'gu- 
nient  as  his  ''Reasons  .  .  .  for  dissenting  from  the 
Decision  of  the  Tribunal  of  Arbitration."  The  title 
of  the  document  is  a  false  pretense,  as  we  shall  con- 
clusively show  in  due  time:  the  act  was  a  dishonor- 
able imposition  on  the  Tribunal,  and  on  hoth  Gov- 
ernments, Great  Britain  as  much  as  the  United 
States. 

In  point  of  fact,  the  document  filed  by  Sir  Alexan- 
der was  in  large  part  of  such  a  character  that,  if  it 
had  been  offered  for  filing  at  any  proper  time,  and 
with  opportunity  to  persons  concerned  to  become  ac- 
quainted with  its  contents,  it  must  [as  declared  l)y 
the  Secretary  of  State  of  the  United  States  in  his  dis- 
patch to  the  American  Agent  of  October  22,  1872] 
have  been  the  plain  duty  of  the  American  Agent 
to  object  to  its  reception,  and  of  the  Tribunal  to  re- 
fuse  it,  as  calculated  and  designed  to  weaken  the  just 
authority  of  the  Arbitrators,  as  insulting  to  the  United 
States  in  the  tenor  of  much  of  its  contents,  and  as  in- 
jurious to  Great  Britain  by  its  tendency  to  raise  up 
obstacles  to  the  acceptance  of  the  Award,  and  to  pro- 
duce alienation  between  the  two  Governments. 

The  document  consisted,  in  part,  of  the  opinions  of 
Sir  Alexander  Cockburn  on  the  several  vessels,  copies 
of  which  he  ought  to  have  delivered  in  print  to  the 
Agent  and  Counsel  of  the  United  States,  in  conform- 
ity  with  his  own  resolution,  but  which  he  failed  to 
do,  thus  depriving  the  American  Government  of  ad- 


I 


i  ! 
f. 


I 


130 


THE   TUKATY   OF   WASHINGTON. 


vantages  in  this  relation  to  which  it  was  entitled, 
and  which  th(;  British  (fovernnient  in  fact  enjoyed 
by  reasoii  oi"  the  more  loyal  conduct  of  the  other  Ar- 
bitrators. 

lie  discusses  these  vessels  with  great  jn'olixity,  so 
as  to  fill  180  pages  folio  letter-i)ress,  while  the;  corre- 
spondent opinions  of  all  the  other  Arbitrators  united 
occupy  only  00  P'lgt^^,  the  differ*  )c*e  being  occasioned 
partly  by  the  number  of  letters  and  other  j)a])ers  in- 
terjected into  his  o])inions,  and  partly  by  the  diffuee- 
ness  and  looseness  of  his  style  and  habit  of  thought, 
as  compared  with  theirs. 

The  residue  of  Sir  Alexander's  document,  consist- 
ing of  IIG  pages,  is  devoted  partly  to  the  discussion 
of  the  special  questions,  in  all  which  he  is  inordinate- 
ly prolix,  and  partly. to  a  general  outpouring  of  all 
the  bile  which  had  been  accunuditing  on  his  stom- 
ach during  the  progress  of  the  Arl>itration. 


ill 


SIR  ALEXANDER  COCKBURN'S  "REASONS." 

Let  me  dispose  once  for  all  of  these  "Reasons"  and 
their  author,  in  order  to  arrive  at  subjects  of  more 
importance  and  interest.  The  matter  of  the  docu- 
ment, and  the  consideration  it  has  received  in  En- 
gland, require  that  it  should  be  examined  and  judged 
from  an  American  stand -point. 

Apart  from  the  unjudicial  violence  and  extrava- 
gance of  these  "  Reasons,"  it  is  remarkable  how  in- 
consistent, how  self- contradicting,  how  destitute  of 
logical  continuity  of  thought,  how  false  as  reasoning,  as 
well  as  irrelevant,  is  most  of  the  matter. 


ALABAMA   CLAIMS. 


131 


The  llcasons  are  on  tlie'r  face,  and  as  the  Londun 
Press  could  not  fail  to  perceive  and  admit, "  an  elab- 
orate rej)ly  to  the  American  Case"  [that  is  to  say,  an 
advocate's  l)lea|,  ''rather  than  a  judicial  verdict." 
\_2Ue(jraph^  September  25.  | 

It  is,  in  truth,  a  mere  7//.s/^>;yw.s'  argument,  not  uj) 
to  the  level  of  an  argument  in  banc;  inappropriate 
to  the  charav,:;er  of  a  judge;  and  which  might  have 
been  (piite  in  i)lace  at  Geneva  as  an  "Ai'gument"  in 
the  cause,  provided  any  British  Counsel  could  have 
been  found  to  write  so  acrimoniously  and  I'eason  so 
badly  as  Sir  Alexander. 

To  establish  these  i)ositions,  it  would  suffice  to  cite 
some  of  the  criticisms  of  the  London  Press. 

The  Tde(j I'di^Ji  |September  26]  argumentatively 
demonstrat(^s  the  palpable  fallacy  of  the  reasoning 
by  which  Sir  Alexander  endeavors  to  excuse  the  ad- 
mitted violation  of  law  and  the  want  of  due  dili- 
gence of  the  British  Government  in  the  case  of  the 
Florida^  especially  at  Nassau. 

The  Neics  [September  2G]  condemns  and  regrets 
the  declaration  made  by  Sir  Alexander  in  his  "^'  ma- 
sons "  twice,  where  he  speaks  of  himself  "  sitting  on 
the  Tribunal  as  in  some  sense  the  representative  of 
Great  Britain,"  and  contrasts  this  with  the  sounder 
view  of  his  duty  expressed  in  Parliament  by  Lord 
Cairns.  • 

Compare,  now,  this  observation  of  the  Neios  with 
certain  pertinent  remarks  of  the  Telegraph  [Septem- 
ber 25].  Speaking  of  Mr.  Adams,  it  says :  "  He  put 
aside  the  temper  of  the  advocate  when  he  took  his 


;  -. 


132 


THE  TREATY   OF  WASHINGTON. 


i  t-^ 


m 


III 


seat  on  the  Bench,  and  he  performed  the  difficult  duty 
with  the  impartiality  of  a  jurist  and  the  (klicate  honor 
of  a  gentleman^  And  this  well-merited  commenda- 
tion of  Mr.  Adams  is  prefatory  to  the  exhibition  of 
Sir  Alexander  Cockburn  retaining  still  "  the  temper 
of  an  advocate  when  he  took  his  seat  on  the  Bench," 
and  not  performing  his  duties  "with  the  impartiality 
of  a  jurist  and  the  delicate  honor  of  a  gentleman,"  but 
to  the  contrary,  as  shown  by  his  deportment  at  Gene- 
va, and  arthenticated  l -der  his  own  hand  in  these 
"  Reasons." 

There  is  no  escape  from  the  dilemma :  it  was  hon- 
oral)le  to  Mr.  Adams  to  act  as  a  "judge"  at  Geneva; 
and,  of  course,  to  act  as  a  mere  "  advocate  "  was  dis- 
honorable to  Sir  Alexander  Cockburn. 

And  thus  we  may  comprehend  at  a  glance,  what 
seems  so  remarkable  tc  the  Telegraph  [September  2G], 
that  when  we  pass  from  the  printed  opinions  of  the 
three  neutral  Arbitrators,  whose  "fairness"  nobody 
disputes,  and  from  those  of  the  impartial  "jurist" 
and  honorable  "  gentleman,"  Mr.  Charles  Francis  Ad- 
ams, to  the  "  Reasons "  of  Sir  Alexander  Cockburn, 
"We  seem  to  go  into  another  climate  of  opinion,  .  .  . 
We  find  different  pi'emises,  a  different  l)ias,  a  differ- 
ent logic,  and  we  might  almost  say  different  facts." 
So  it  is,  indeed;  and  the  explanation  is  obvious. 
The  "climate"  of  Count  Sclopis,  Baron  d'ltajuba,  Mr. 
Staempfli,  and  Mr.  Adams,  was  that  of  fairness,  judi- 
cial dignity,  impartiality,  gentlemanly  honor,  such  as 
belonged  to  their  place  as  Arbitrators :  the  "climate" 
of  Sir  Alexander  Cockbarn  was  that  of  a  self-appoiut- 


m 


ALABAMA  CLAIMS. 


133 


i^ 


ed  "advocate,"  making  no  pretensions  to  "fairness"  of 
"impartiality,"  but,  with  tlie  "premises,"  "bias,"  "log- 
ic" and  "facts"  of  sucli  an  advocate,  drawing  up  a 
passionate,  rhetorical  plea,  as  the  officious  "  represent- 
ative of  Great  Britain." 

As  such  "  representative  of  Great  Britain,"  if  he  be 
not  promptly  disavowed  by  the  British  Government, 
it  will  be  found  that  his  "  Reasons"  lay  down  many 
positions  w^hich  may  somewhat  embarr.-.ss  present  or 
subsequent  Ministers. 

The  Netvs  notices  numerous  contradictory  opinions 
or  conclusions  w^hich  appear  in  the  "  Reasons."     In 
one  place  Sir  Alexander  complains  that  a?iy^u\es  are 
laid  down  by  the  Treaty,  and  in  another  place  ex- 
presses the  conviction  that  it  is  well  to  settle  such 
questions  by  Treaty  Rules.     "  He  complains  .  .  .  that 
the  Arbitrators  have  not  been  left  free  to  apply  the 
hitherto  received  principles  of  international  law,  and 
that  they  have;   that  rules  have  been  laid  down, 
and  that  they  have  not;   that  definitions  have  been 
framed,  and  that  they  have  not  been  framed."    Here 
is  most  exquisite  confusion  of  ideas.     It  is  the  very 
same   extraordinary   and   characteristic  method  of 
thinking  and  writing  which  Mr.  Finlason   had  ex- 
hibited at  length,  and  which  Mr.  Gathorne  Hardy 
pointed  out  in  the  case  of  the  Queen  against  Nor- 
ton: the  "inflammatory  statements,"— the  "extra-ju- 
dicial denunciation,"  the  "extra-judicial  declamation," 
the  going  "  from  one  side  to  another,"  and  the  say- 
ing "it  is"  and  "it  is  not"  upon  every  point  of  law.  ^ 
The  perfect  similitude  of  these  repulsive  features  of 


-r 


134 


THE  TREATY  OF  WASHINGTON. 


1 

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the  "Charge"  and  the  "Reasons"  can  not  be  accident- 
al :  it  must  have  its  cause  in  idiosyncrasies  of  mental 

constitution.  .  . 

This  vacillation  cv  contradictoriness  of  opinion, 
which  strikes  the  Neics  so  much,  pervades  the  "  Rea- 
sons." 

Thus  Sir  Alexander  admits  want  of  due  diligence 
in  the  matter  of  the  Alahaina,  and  yet  stoutly  denies 
that  the  United  States  had  any  good  cause  of  com- 
plaint against  Great  Britain.  He  insists  that  Minis- 
ters were  to  -officiate  within  the  limits  of  municipal 
law,  and  yet  admits  that  such  is  not  the  law  of  na- 
tions, the  force  of  which  he  also  recognizes.  He  de- 
nies that  the  Ministers  can  lawfully  exercise  any  pre- 
rogative  power  in  such  matters,  and  yet  justifies  and 
approves  the  exercise  of  it  [although  too  late]  ii  ^he 
case  of  tlie  Shenandoah. 

The  News  also  calls  attention  to  Sir  Alexander's 
"  disafi'ection  to  the  conditions  under  which  he  dis- 
charges his  task,  a  task  voluntarily  accepted  with 
full  knowledge  of  those  conditions."  "  He  criticises 
adversely  the  Treaty  of  Washington :  .  .  .  these  criti- 
cisms seem  to  us  to  be  extra  vires.  A  derived  author- 
ity ought  surely  to  respect  its  source Other  con- 
siderations than  those  laid  down  for  him  have  certain- 
ly been  present  to  the  mind  of  Sir  Alexander  Cock- 
burn,"  etc. 

There  is  manifest  justness  in  this  criticism.     What 

business  had  Sir  Alexander  to  indulge  in  continual 

crimination  of  the  Treaty  of  Washington,  while  act- 

*ing  as  Arbitrator  under  it,  and  possessing  no  pow- 


T 


ALABAMA   CLAIMS. 


135 


1 


er  or  jurisdiction  except  such  as  tlie  Treaty  confers? 
To  do  so  was  indecent  in  itself,  and  could  Lave  no  ef- 
fect other  than  to  embarrass  the  British  Government. 
With  his  habitual  inconsiste:  cy  of  thought,  to  be 
sure  he  advises  submission  to  the  judgment  of  the 
iVrl^trators,  while  exhausting  himself  in  efforts  to 
shake  its  moral  strength  and  that  of  the  Treaty.     The 
ThneH  [September  28]  plainly  sees  that  the  "  Rea- 
sons" of  Sir  Alexander  "will  be  duly  turned  to  ac- 
count by  Opposition  critics."     And  perhaps  that  was 
one  of  the  objects  Sir  Alexander  had  in  view,  m  thus 
usurping  the  function  to  judge  the  Treaty  under  the 
cover  of  acting  as  Arbitrator  to  judge  the  specihc 
questions  submitted  by  the  Treaty. 

The  Times  admits  that  the  "  severity  of  the  criti- 
cism passed  by  the  Chief  Justice  on  the  United  States 
and  their  Agents,  and  eve7i  on  his  colleagues,  may, 
from  a  diplomatic  point  of  view,  be  some  ground  for 
reo-ret ;"  .  .  .  that  "  perhaps  he  was  too  ready  to  con- 
sider himself  the  representative  of  England;"  that 
"perhaps  he  takes  more  than  a  judicial  pleasure"  m 
one  argumentative  suggestion ;  and  that  "  he  dwells 
perhaps,  with  something  too  much  of  the  delight  ot 
an  advocate"  on  some  other  point;  and  m  each  one 
of  these  admissions,  qualified  as  they  are,  we  perceive 
recognition  of  the  fact  that,  in  his  "Reasons,"  Sir 
Alexander  does  not  speak  as  an  international  Arbi- 
trator, or  manifest  the  qualities  which  ought  to  char- 
acterize a  Chief  Justice.  _       .  „  •     i 
The  News  indicates  other  singular  traits  ot    irrel- 
evance "  and  confusion  of  mind  in  the  "  Reasons." 


<1I 

"11 


136 


THE   TREATY  OF   WASHINGTON. 


iii 


i' 


Examination  of  the  snbstance  of  the  "  Reasons" 
leads  to  still  more  unfavorable  conclusions. 

While  the  Chief  Justice  exhausts  himself  in  fault- 
finding with  the  Counsel  of  the  United  States,  it  is 
observable  that  he  seldom,  if  ever,  gra])i)les  with  their 
arguments,  but  shoots  off  instead  into  epithets  of  mere 
vitui:)eration.  Indeed,  if  it  were  worth  while,  it  would 
be  easy  to  show  that  he  did  not  really  read  that  which 
he  so  intemperately  criticises.  And  when  _ie  under- 
takes to  deal  with  the  text,  it  is  only  in  the  disingen- 
uous manner  of  picking  out  here  and  there  a  detached 
paragraph  or  phrase  for  comment,  regardless  of  the 
context  or  the  o*eueral  line  of  argument. 

Nevertheless,  when  he  has  occasion  to  differ  in 
opinion  with  the  Counsel  of  the  United  States,  such 
is  the  perverted  state  of  passion  and  prejudice  in 
which  he  thinks  and  writes,  that  he  imputes  to  us  in- 
tention to  practice  on  the  "  supposed  credulity  and 
ignorance  "  of  the  Ti  ibunal. 

We  were  not  amenable  in  anywise  to  the  British 
Arbitrator ;  but,  if  we  had  been  barristers  in  his  own 
Court  of  whom  such  things  were  said  by  him,  it  would 
have  been  an  example  of  judicial  indecency  to  parallel 
which  it  would  be  necessary  to  go  back  to  the  days 
of  infamous  judges  like  Jeffreys  or  Scroggs. 

Let  Sir  Alexander  be  judged  by  his  own  rule. 
Cvammincj^  as  he  did  at  Geneva,  in  the  preparation  of 
his  "  Reasons,"  he  examined  superficially  and  wrote 
precipitately :  in  consequence  of  which  he  copied 
from  the  Arguments  for  the  British  Government  pal- 
pable errors,  which  were  exposed  and  corrected  in 


I 


ALAJJAMA   CLAIMS. 


137 


the  Arguments  for  the  United  States.  Thus  it  is  that 
he  falls  into  the  mistake  of  assertinoi;  a  false  construe- 
tion  of  an  Act  of  Congress,  by  having  a  mutilated 
text  before  him,  quoting  a  ^;«/'^  of  a  sentence,  which 
may  or  may  not  justify  his  construction,  and  sup- 
pressing the  context  and  the  sequent  word:-;  of  the 
same  sentence,  which  clearly  contradict  his  construc- 
tion. Acting  on  his  own  theory  of  blind  prejudice, 
we  should  be  compelled  to  assume  that  on  this  occa- 
sion he  perpetrates  a  deed  of  deliberate  bad  faith, 
with  intention  io  j^ractice  on  the  "supposed  credulity 
and  ignorance "  of  the  people  of  Great  Britain. 

Why  did  the  British  Arbitrator  put  together  such 
a  mass  of  angry,  irrelevant,  confused,  and  contradict- 
ory declamation  against  the  American  Government, 
and  denunciation  of  its  Agent  and  Couns'^1  ?  To  vin- 
dicate the  honor  of  British  statesmen,  Sir  Alexander 
declares,  in  a  speech  at  a  banquet  in  London  [Novem- 
ber 4th],  against  unjust  charges  coming  from  the 
American  Government.  But  that  should  have  been 
done  by  speech  or  otherwise,  as  Sir  Alexander  Cock- 
hum  professedly,  and  in  England,  and  not  under  the 
false  pretense  of  an  Arbitrator  at  Geneva.  And  vi- 
olent denunciation  of  our  Case  or  Arguments  consti- 
tutes no  answer  to  our  charges.  And  in  such  vituper- 
ation of  the  American  Agent  and  Counsel,  Sir  Alexan- 
der not  only  throws  off  all  pretense  of  judicial  charac- 
ter, and  assumes  the  tone  of  a  mere  advocate,  but  he 
acts  the  part  of  an  advocate  in  temper  and  manner 
such  as  the  proper  Counsel  of  the  British  Govern- 
ment  could  not   have   descended   to.      Indeed,  the 


r 


138 


THE   TREATY   OF  WASHINGTON. 


'  I , 


•f 


"  Reasons  "  proceed  from  beginning  to  end  on  tlie  hy- 
pothesis that  the  British  Agent  and  Counsel  had  neg- 
lected their  duty ;  that  neither  the  Case,  Counter-Case, 
nor  Argument  of  the  British  (jrovernment,  by  whom- 
soever prepared,  nor  the  several  supi)lementary  Argu- 
ments filed  by  Sir  Roundel!  Palmer  in  his  own  name, 
contained  a  proper  exhibition  of  the  defenses  of  the 
British  Government ;  and  more  especially  that  Agent 
and  Counsel  alike  had  all  been  false  to  their  country's 
honor  in  not  vindicating  it  against  the  charges  of  the 
Americans.  In  view  of  this  dereliction  of  duty.  Sir 
Alexander  volunteers  to  supply,  move  suo,  the  place 
of  Counsel,  and  to  respond  to  the  American  Agent 
and  Counsel. 

Against  what  charges?  The  existence  of  an  un- 
friendly state  of  mind  toward  the  American  Govern- 
ment in  Parliament,  or  in  some  of  the  British  Colo- 
nies at  the  period  in  question  ?  Sir  Alexander  ad- 
mits the  fact  in  stronger  terms  than  we  had  charged 
it. — Failure  to  exercise  due  diligence  in  arresting  the 
equipment  of  Confederate  cruisers  to  depredate  on 
our  commerce?  Sir  Alexander  admits  and  proves  it, 
under  three  heads,  as  to  the  Alabama,  and  only  es- 
capes the  same  admission  as  to  the  Florida  by  tech- 
nicalities as  unsatisfactory  to  impartial  minds  in  F*i- 
gland  as  in  America. — As  the  London  Telegraph  says, 
in  another  relation.  Sir  Alexander,  whilst  indignantly 
protesting  against  our  accusation  of  British  ofiicers, 
admits  their  failure  to  do  their  duty,  which  is  the 
foundation  of  the  accusation.  But  for  that  marvel- 
ous confusion  of  ideas  which  distinguishes  Sir  Alex- 


,^ 


't 


ALABAMA  CLAIMS. 


139 


under,  even  lie  mnst  have  seen  that,  in  confessing  and 
proviiKj  the  guilt  of  his  Government,  he  estops  him- 
self from  denying  the  justice  of  the  accusation  pre- 
ferred l)y  the  United  States. 

But  the  jioint  of  honor  was  considered  when  the 
Treaty  was  signed.  IIow  strangely  Sir  Alexander 
forgets  the  attitude  in  which  this  objection  stands  in 
Lord  RusselFs  correspondence  with  Mr.  Adams.  If 
there  was  any  question  of  honor  in  the  controversy, 
that  it  was  which  forbade  a  treaty  of  arbitration,  as 
Lord  Russell  constantly  maintained.  But  three  suc- 
cessive Foreign  Ministries,  represented  by  Lord  Stan- 
ley, Lord  Clarendon,  and  Lord  Granville,  had  rightly 
decided  that  the  question  at  issue  did  not  involve  the 
honor  of  the  British  Government.  Sir  Alexander 
wastes  his  words  over  a  dead  issue,  utterly  buried  out 
of  sight  by  the  stipulations  of  the  Treaty  of  Wash- 
ington. 

Mr.  John  Lemoinne  expresses  the  judgment  of  Eu- 
rope, and  anticipates  that  of  history,  m  condemning 
Sir  Alexander's  "vehemence  of  polemic  and  bitter- 
ness of  discussion,  so  extraordinary  in  an  official  doc- 
ument." 

Strangely  enough,  the  Saturday  Review^  which  pre- 
tends to  see  "  scurrility"  in  the  American  Case  and 
Argument,  where  it  does  not  exist,  is  blind  to  it  in 
the  "  Reasons,"  where  it  is  a  flagrant  fact. 

Meanwhile,  there  is  nothing  accusatory  of  Great 
Britain  in  the  American  Case, — there  is  nothing  of 
earnest  inculpation  of  the  British  Government  in  the 
American  Argument, — which  is  not  greatly  exceeded 


140 


THE  TREATY   OF  WASHINGTON. 


II'   ' 
Ri  -  I  ' 


by  extra-judicial  accusation  and  inculpation  of  the 
United  States  in  the  "  Keasons  "  of  Sir  Alexander. 

And  it  is  amusing  to  read  the  imputations  of  "  con- 
fusion," "  vague  and  declamatory,"  "  ignorance  of  law 
and  history,"  which  he  applies  to  the  American  Coun- 
sel, in  view  of  what  his  own  countrymen  say  of  hisj 
own  methods  of  argumentation.  Indeed,  it  w^ould 
seem  that  the  hard  w^ords  of  Mr.  Fiulason  and  others 
concerning  him  had  made  such  efi'ectual  lodgment  in 
his  brain  that,  whenever  he  writes,  they  rush  forth 
hap-hazard  to  be  applied  by  him  without  reason  oi* 
discrimination  to  any  occasional  object  of  argument 
or  controversy. 

If,  like  Mr.  Charles  Francis  Adams,  Sir  Alexander 
had  simply  prepared  brief  and  temperate  opinions  on 
all  the  questions,  w^hether  favorable  or  not  to  the 
United  States,  both  Governments  would  have  been 
left  in  an  amicable  mood.  As  it  is,  in  professedly 
throwing  off  the  character  of  a  judge, — which  alone 
belonged  to  him  of  right, — of  certain  specific  charges 
of  the  United  States  against  Great  Britain,  submitted 
to  him  by  the  Treaty  of  Washington, — and  in  under- 
taking to  become  the  mere  accuser  of  the  United 
States, — he  does  but  insult  the  American  Govern- 
ment, while  subjecting  his  own  Government  to  much 
present  inconvenience  and  great  future  embarrass- 
ment. 

There  is  one  particular  feature  of  the  "Reasons" 
too  remarkable  to  be  overlooked. 

In  reading  these  "Reasons"  carefully,  one  can  not 
fail  to  be  struck  by  the  frequent  manifestation  of  the 


ALABAMA   CLAIMS. 


141 


disposition  of  Sir  Alexander  Cockburn  to  stop  and 
turn  aside  in  order  to  criticise  Mr.  Stiemplli. 

Mr.  St«3nii)lli,  in  confornuty  witli  the  vote  of  the 
Tribunal,  printed  his  provi.sional  oi)inions,  and  deliv- 
ered them  to  the  other  Arbitrators  from  time  to  time, 
and  to  the  respective  Agents  and  Counsel. 

Sir  Alexander  Cockburn  disingenuously  suppressed 
his  provisional  opinions  until  the  last  moment,  and 
then  filed  a  sini/Ie  copy  only  of  the  mass  of  matter, 
general  and  special,  entitled" Reasons,"  which  ai)pears 
Fn  print  for  the  first  time  in  the  London  (rctzette. 

Now,  in  the  provisioLal  opinions  of  Mr.  Stajmpfli, 
it  is  quite  possible  there  may  have  been  some  error 
of  statement.  Sir  Alexander  takes  pains  to  affirm  it. 
But,  if  there  be  any  such,  it  is  quite  immaterial,  and 
does  not  affect  any  important  conclusion  either  of  fact 

or  of  law. 

Sir  Alexander  also  committed  errors  of  this  class  in 
the  provisional  opinions  tvhicJi  he  read.  Some  of 
them  were  noted  at  the  time,  and  are  still  remember- 
ed. These  errors  may  have  been  corrected  in  the 
print  which  we  now  have.  Indeed,  the  manmcript 
shows  numerous  corrections.  Nevertheless,  but  for 
the  suppression  of  Ids  provisional  opinions,  his  col- 
leagues might  have  interlarded  their  provisional  or 
revised  opinions  with  similar  captious  criticisms  of 
him.  It  is  presumable  that  they  did  not  think  it  be- 
coming or  fair  to  do  this ;  and  it  was  to  the  last  de- 
gree u°nfair  in  Sir  Alexander  to  do  it,  in  a  document 
foisted  into  the  record,  as  it  was,  at  the  instant  of  ad- 
journment, and  immediately  carried  off  without  being 


-I 


I 


ill    I 


,^      I 


i^- 


142 


THE  TREATY  OF  WASHINGTON. 


actually  filed  with  the  Secretary  or  otherwise  placed 
in  the  archives  of  the  Tril)iiiial. 

Now,  in  the  early  pages  of  his  "  Reasons,"  he  im- 
putes to  Mr.  Stienij)fii  the  having  said  "  that  there  is 
no  such  thing  as  international  law,  and  that  conse- 
cpientiy  we  [the  Arbitrators  |  are  to  proceed  inde- 
pendently of  any  such  law,"  and  "  according  to  sonu^ 
intuitive  perception  of  right  and  wrong  or  speculative 
notions,  etc." 

The  imputation  is  calunmious.  No  such  statement 
aj'pears  in  any  of  the  printed  opinions  of  Mr.  Stjenipfii ; 
no  such  declaration  was  ever  made  by  him  orally  at 
any  of  the  Conferences.  The  declaration  of  Sir  Al- 
exander in  this  respect  is  but  a  sample  of  the  rash- 
ness and  inaccuracy  of  rejiresentation  which  pervade 
the  "Reasons." 

What  Mr.  Stjcmpfli  says  on  the  general  subject  of 
"  international  law,"  in  so  far  as  regards  the  matters 
before  the  Tribunal,  is  as  follows: 

"Principes  goneraiix  do  droit. 

"Dans  ses  considorants  juridiques,  le  Tribunal  doit  se  guider 
par  les  principes  suivants: — 

"  1.  En  premier  lieu,  par  les  trois  Regies  posees  dans  1' Article 
VI.  du  Traite,  lequel  portc  que, — et  cetera. 

•  •  •  •  •  • 

"  D'apres  le  Traite  ces  trois  Regies  prevalent  sur  les  principes 
que  I'on  pourrait  deduire  du  droit  des  gens  historique  et  de  la 
science. 

"  2.  Lo  droit  des  gens  historique,  ou  bien  la  pratique  du  droit 
des  gens,  ainsi  que  la  science  et  les  autorites  scientifiques, 
peuvent  etre  consideres  comme  droit  subsidiaire,  en  tant  que 
les  principes  a  appliquer  sont  gencralement  reconnus  et  ne  sont 
point  sujets  a  controverse,  ni  en  disaccord  avec  les  trois  Ragles 


I 


1 


ALABAMA   CLAIMS. 


143 


cidcssiis.  Si  Vnno  on  rautre  de  ccs  coiulitions  vicnt  il  maiKiucr, 
c'est  au  Tribunal  d'y  Ku^)j)KV'r  eii  iiitcrprc'lant  vt  a|)[)li(iuaut  Ics 
trois  Kc'iik's  tie  8011  inleiix  el  cu  tuiito  conscience." 

At  the  time  when  Sir  Alexander  sent  to  press  his 
misrepresentation  of  the  opinions  of  Mr.  Sta'nij)fli,  he 
had  in  his  hands  the  anthentic  statement  thereof 
as  printed  at  (i eneva.  There  is  no  excuse,  therefore, 
for  this  malicious  and  dishonorable  endeav^or  of  the 
British  Arbitrator  to  prejudice  the  character  of  the 
Swiss  Arbitrator  in  Great  Britain. 

Nevertheless,  Mr.  St;em])fli,  according  to  Sir  Alex- 
ander, having  cut  adrift  from  all  positive  law,  adopts 
instead  "  speculative  notions,"  or  "  some  intuitive  per- 
ception of  right  and  wrong ;"  and  such  ideas  Sir  Al- 
exander repudiates:  oi',  as  the  London  Tdefjvapli  has 
it,  "  the  Chief  Justice,  armed  with  sarcasm  as  well  as 
logic,  runs  full  tilt  against  that  doctrine :"  to  wit,  the 
doctrine,  still  in  the  words  of  the  Tehgrapli^  "  that  the 
duties  which  nations  owe  to  each  other  must  be  de- 
termined by  the  light  of  intuitive  principles  of  jus- 
tice." The  Telegi'aph  goes  on,  with  truth  and  reason, 
to  say  that,  after  all,  Mr.  Staempfli  is  right,  if  he  insists 
that  "  the  rules  of  fair  dealing,  which  we  term  inter- 
national law,  are  not  law  in  the  same  sense  as  the  pos- 
itive edicts  of  th^.  common  law;  for  the  essence  of 
such  edicts  is  that  they  come  from  a  lawgiver  in  the 
form  of  a  parliament  or  a  sovereign :  the  rules  of  in- 
ternational justice  are  simply  the  code  which  experi- 
ence and  the  judgment  of  able  men  have  shown  to  be 
fair  or  expedient,  but  every  civilized  country  feels 
them  to  be  not  less  binding  on  that  account."    With- 


•n- 


144 


TIIK   THKATV   OF  WASHINGTON'. 


I     I 


iti 


:i  'I 


i 


out  jKiusijii^  to  consider  wlit'thei'  tliese  ohservations 
are  pertcctly  uccurtitt'  or  not  as  a  definition  of  the  law 
of  nations,  we  may  assume  that  they  are  substantially 
so,  and  suffice  at  any  rate  to  show  clearly  the  uncan- 
did  spirit  of  Sir  Alexander's  criticism  of  the  imj^uted 
languai^c^  of  Mr.  St;empfii, — a  criticism  which  calls  to 
mind  a  similar  unjust  and  vicious  reproach  cast  by 
Junius  on  Lord  Mansfield. 

IMie  actual  statement  of  Mr.  Stji^mpfii,  as  we  have 
seen,  was  unexceptionably  accurate  and  ])recise,  iu  so 
far  as  reji-arded  the  matters  before  the  Tribunal. 

Meanwhile,  Mr.  St;empfli  may  have  said  orally,  what 
he  says  here  in  print,  that  in  many  supj)osable  cases 
of  deficient  explicitness  either  of  the  conventunal 
rules  or  of  the  historic  law  of  nations,  "  c'est  au  Tri- 
bunal d'y  suppleer  en  interpretant  et  appliquant  les 
trois  regies  de  son  mieux  et  en  toute  consciencer 

That  is  what  the  Viscount  of  Itajuba  says  in  one 
of  his  opinions,  namely,  that  a  certain  doctrine,  assert- 
ed by  the  British  Government,  "  froisse  la  conscience." 
It  is  what  Count  Scloi)is  intends,  when  he  says,  "  Les 
nations  ont  entre  elles  un  droit  commun,  ou,  si  on  aime 
mieux,  r  '"  n  commun, /(9r//^e  ^xw  Veqaite  et  sanc- 
tioni  '  xe  respect  des  interets  recipro([ues ;"  and 
th;  .n  is  the  spirit  of  the  Ti-eaty  of  Washington, 
"  qui  ne  fait  (][ue  donner  la  preference  aux  regies  de 
Fecpiite  generale  sur  les  dispositions  d'une  legislation 
particuliere  quelle  qu'elle  puisse  etre."  That  is  "  the 
universal  immutable  justice,"  which  in  all  systems  of 
law,  international  or  national,  distinguishes  right  from 
wrong,  and  to  which  the  United  States  appealed  in 


ALABAMA   CLAIMS. 


145 


ttdtlresslno;  the  Tiibuiial  of  Ai'])itmtion.  And  it  is 
the  iK'i^ation  of  all  thes»«  gront  })riiu'i])U;.s  of  "justice," 
"  e(iuity,"  or  "  conseieiice,'  wliieh  j)ei'vudes  tlie  "  Ilea- 
sons"  of  Sir  AlcxaiKh'r  Cockl^urn:  in  reflecting  on 
whicli,  th(^  ii.iiid  irresistibly  reverts  to  that  same  line 
of  reasoning  wliich  astonishci  ^  world  in  his  ])ar- 
lianientary  advocacy  of  David.        Jco. 

And  now,  who  is  injured  by  Sir  Alexander's  acri- 
monious arraignment  of  the  L'nited  States  in  the  last 
liour  of  the  Arbitration;?  It  does  not  successfully 
maintain  the  Jionor  of  the  British  Ministers;  for  it 
recognizes  their  failure  to  exercise  due  diligence, 
whether  tried  by  the  Treaty  Kules,  by  the  law  of  na- 
tions, or  by  the  Act  of  Parliament.  Does  it  influence 
the  action  of  the  Tribunal  i  No :  that  was  consum- 
mated already.  Does  it  injure  the  American  Govern- 
ment, its  Accent  and  Counsel  ?  No :  so  far  as  recjards 
us,  it  does  but  prove  that  the  American  Agent  and 
Counsel  have  done  their  duty  regardless  of  the  vin- 
dictive ill-will  of  the  British  Arlntrator,  and  that  the 
United  States  have  been  successful  to  such  a  degree 
as  to  throw  the  Chief  Justice  of  England  into  ecstasies 
of  spiteful  rage,  in  which  he  strikes  out  wildly  against 
friend  and  foe  alike,  but  chiefly  against  his  own  Gov- 
ernment, in  his  desultory  criticism  as  well  of  the 
Treaty  of  Washington  as  of  the  judgment  of  the  Ti'i- 
bunal  of  Arbitration. 

For  the  British  Government,  we  know,  has  no  dis- 
position to  repudiate  the  Treaty,  and  it  accepts  the 
Award  in  good  faith,  and  desires  that  it  should  be  ac- 
cepted by  the  people  of  Great  Britain.     It  can  not  be 

K 


4 


146 


THE  TREATY   OF  WASHINGTON. 


agreeable  to  the  BritisL  Government  to  Lave  all  the 
old  debate  reopened  by  tlie  Chief  Justice, — to  have 
the  Treat}^,  its  liules,  tlie  Arbitration,  and  the  Award, 
made  by  him  the  subject  of  profuse  'lenunciation, — to 
have  an  arsenal  of  weapons,  good,  bad,  or  indifferent, 
collected  by  him  for  the  use  of  the  Op])Osition  in  Par- 
liament. 

Nor  can  it  be  agreeable  to  see  the  Arljitrator  they 
had  a])])ointed  demean  himself  so  fantastically,  nnd, 
as  the  English  Press  is  constrained  to  admit,  in  a 
manner  so  painfully  in  contrast  with  the  dignity  and 
judicial  impartiality  of  the  American  Arbitrator. 

The  Chancellor  of  the  Exchequer  [Mr.  Lowe]  gave 
utterance  to  these  sentiments  cf  grief  and  regret  in  a 
speech  at  Glasgow  on  the  2 (3th  of  September,  as  fol- 
lows : 


I 


i 


i(  ; 


I' ' 


"  I  conceive  oiir  duty  to  be  to  obey  the  Award,  and  to  pay 
whatever  is  assessed  against  iis  without  cavil  or  comment  of 
any  kind.  [Cheers.]  I  am  happy  to  say  tliat  such  is  the  opin- 
ion of  my  learned  friend,  the  Lord  Chief  Justice.  I>ut  I  must 
say,  with  the  greatest  submission  to  my  learned  friend,  that  I 
wish  his  practice  had  accorded  a  little  more  accurately  with 
his  theory.  He  has  advised  us  to  submit,  as  I  advise  you  to 
submit,  to  the  Award,  and  not  only  to  pay  the  money,  but  to 
forego  for  once  the  national  habit  of  grumbling — [hiughter] — 
and  to  consider  that  we  are  bound  in  honor  to  do  what  we  are 
told,  and  that,  having  Once  put  the  thing  out  of  our  power  in 
the  honorable  and  the  high-minded  way  in  which  the  nation 
has  done,  the  only  way  in  which  we  should  treat  it  is  simply 
to  obey  the  Award,  and  to  abstain  from  any  comment  whatever 
as  to  what  the  Arbitrators  have  done.  [Cheers.]  But,  if  my 
learned  frierd  the  Lord  Chief  Justice  thought  so,  I  can  only 
very  muc'  icgret  that  he  did  not  take  the  course  of  simply 
signing  tlie  Award  with  the  otlier  Arbitrators,  it  being  perfectly 


^ 


ALABAMA  CLAIMS. 


147 


well  known  that  he  differed  from  them  in  certain  respects,  which 
would  appear  by  the  transactions  of  the  Award,  i  think  it  is  a 
pity  whe!i  the  thing  is  decided,  when  we  are  bound  to  act  upon 
it,  and  when  we  are  not  really  justified,  in  any  feeling  of  honor 
or  of  good  faith,  in  making  any  reclamation  or  quarrel  at  all 
with  what  has  been  done,  that  lie  should  have  thought  it  his 
duty  to  stir  up  and  to  renew  all  the  strong  arguments  and  con- 
tests upon  which  tliese  Arbitrators  have  decided.  [Cheers.] 
I  think  if  it  was  his  opinion  that  we  ought  to  acquiesce  quietly 
and  without  murmur  in  the  Award,  he  had  better  not  have  pub- 
lislied  his  argument,  and,  if  he  thought  it  right  to  publish  his 
argument,  he  had  better  have  rctriiuched  his  advice  itself  as  xo 
the  arbitration." 

Mr.  Lowe  can  not  help  seeing  tliat  the  "Reasons" 
are  not  an  oj/inion,  but  an  "  argument,"  and  an  "  argu- 
ment" adverse  to  the  conclusions  "of  the  writer. 

Thus,  it  would  appear,  such  is  the  eccentric  mental 
constitution  of  the  Chief  Justice,  that  while  he  is  in- 
capable of  going  through  any  process  of  reasoning 
without  inconsistencies  and  self  contradictions  at  ev- 
ery step,  so  he  can  not  perform  an  act,  or  rec  ^mmend 
its  performance,  without  at  the  same  time  setting 
forth  ample  reasons  to  forbid  its  performance. 

In  the  recent  debate  in  Parliament,  to  be  sure,  on 
the  Queen's  speech,  some  of  the  members  of  both 
Houses,  especially  of  those  in  Opposition,  speak  in 
terms  of  laudation  of  the  "  Reasons"  of  the  Chief  Jus- 
tice. Lord  Cairns,  on  this  occasion,  seems  to  have  for- 
gotten what  he  had  said,  on  a  previous  occasion,  of  the 
judicial  impartiality  to  be  expected  of  an  arbitrator. 
And  Mr.  V^ernon  Harcourt,  in  defending  the  Chief 
Justice  against  what  the  Chancellor  of  the  Exchequer 
had  said  of  him  at  Glasgow,  unconsciously  falls  into 


I 


148 


THE  TREATY   OF  WASHINGTON. 


w 


the  error  of  characterizing  him  as  "  the  representative 
of  the  Crown,  sent  forth  to  discharge  his  duty  to  liis 
Sovereign  and  maintain  the  honor  of  his  coimtry :" 
which  affords  to  Mr.  Lowe  opportunity  of  responding 
triumphantly  as  follows : 

"  I  have  not  spoken  of  the  Lord  Chief  Justice  in  the  lan- 
Gruasjc  in  which  the  honorable  and  learned  j^entleman  lias 
spoken  of  him,  and  "which  filled  me  with  unbounded  astonish- 
ment. The  Lord  Chief  Justice  was  sent  to  Geneva  as  an  Ar- 
bitrator  to  act  impartially,  and  not  to  allow  liimself  to  be 
biased  by  the  fact  of  his  being  an  P^nglishman,  but  to  give  his 
judgment  on  what  he  thought  to  be  the  merits  of  the  case. 
That  is  my  belief  with  regard  to  the  Lord  Chief  Justice,  with 
regard  t"  whom  I  am  arraigned  by  the  honorable  and  learned 
gentleman  as  having  treated  him  disrespectfully.  But  how 
does  tlie  lionorable  and  learned  gentleman  himself  speak  of  the 
Lord  Chief  Justice?  lie  says  that  learned  Judge  was  a  ])len- 
ipotontiary, — tliat  is  to  say,  that  he  went  to  Geneva  to  do  the 
work  of  England,  and  not  to  decide  between  two  parties  im- 
partially, but  to  be  biased  in  liis  course,  and  to  go  all  lengths 
for  England.  The  conduct  of  the  Lord  Chief  Justice  negatives 
such  a  statement,  because  in  some  respects  the  learned  lord 
went  against  us.  Then  the  honoi-able  and  learned  gentleman 
said  that  the  Lord  Chief  Justice  was  sent  to  Geneva  to  defend 
the  honor  of  this  country;  but  the  fact  is  that  he  was  soU  to  ar- 
bitrate, and  l!<ir  lloundell  Palmer  and  others  were  sent  to  defend 
the  honor  of  the  country.  It  would  he  a  libel  on  the  Lord  (Jhief 
Justice  to  insi7inate  that  he  woidd  undertc^  <i  the  office  of  going 
to  Geneva  nominally  in  the  character  of  Arbitrator,  but  really 
to  act  as  an  advocate  and ^'  nipotentiary  for  this  <!onntry.^^ 

It  is  difficult  to  judge  how  much  of  what  Mr.  Lowe 
said  on  this  occasion  was  intended  as  sincere  defense 
of  the  Chief  Justice,  and  how  much  was  mere  sarcasm. 
But  this  uncertainty  is  due  to  the  ambiguous  and 
equivocal  conduct  of  the  Chief  Justice  himself,  and 


ALABAMA  CLAIMS. 


149 


% 


I 


to  Lis  own  declaration  that,  wLile  engaged  in  writ- 
ing an  extra-judicial  i)ampldet,  under  the  false  pre- 
tense of  its  being  tlie  act  of  an  Arbitrator,  lie  was 
really  speaking  as  the  Representative  of  Great  Brit- 
ain. That  was  the  mistake  of  the  Chief  Justice.  It 
was  competent  for  him,  after  rui  Ing  away  from  the 
Tribunal  as  he  did,  to  publish  in  England  the  con- 
tents of  the  first  part  of  the  "lieasons"  as  a  personal 
act.  It  was  dishonorable  in  him  to  snuifrirle  it  into 
the  archives  of  the  Tribunal,  and  to  publish  it  in  the 
London  Gazette  as  the  official  act  of  an  Arbitrator. 

In  view  of  all  these  incidents,  and  of  the  extraordi- 
nary contrast  between  the  conduct  of  Mr.  Adams  and 
Sir  Alexander  Cockburn,  as  admitted  by  Englishmen 
themselves,  it  is  easy  to  comprehend  that,  while  the 
former  has  been  honored  with  the  express  official 
commendation  of  hoth  Governments,  the  latter,  by 
wantonly  insulting  his  fellow -Arbitrators  and  the 
United  States,  has,  while  receiving  partisan  praise  in 
Parliament,  rendered  it  difficult,  if  not  impossible,  for 
him  to  receive  the  hearty  aj^proval  even  of  his  own 
Government. 

OPINIONS  OF  THE  OTHER  ARBITRATORS. 

The  other  Arbiti'ators  also  placed  on  record  their 
separate  opinions  as  finally  corrected,  all  which  de- 
serve notice.  Each  of  these  opinions  consists  of  an 
affirmative  exposition  of  the  views  of  the  Arbitrator 
who  speaks.  Count  Sclopis,  Mr.  St.'empfii,  the  Vicomte 
dTtajuba,  and  Mr.  Adams,  each  of  them  states  his  con- 
clusions founded  on  the  documents  and  arguments  be- 


i 


150 


THE  TREATY  OF  WASHINGTON. 


fore  the  Tribunal.  Neither  of  them  seems  to  have 
imagined  that  the  cause  of  truth  or  of  justice  would 
have  been  promoted  by  going  outside  of  the  docu 
ments  and  arguments  sul)mitted,  in  order  to  criticise 
or  cavil  at  the  opinions  of  the  British  Arbitrator. 

We  begin  with  Mr.  Adams.  His  opinions  are  of 
some  length ;  and,  although  containing  correct  state- 
ments of  local  law  where  such  statements  were  mate- 
rial, yet  deserve  to  be  regarded  in  the  better  light  of 
diplomacy  and  of  international  jurisprudence.  He 
does  not  descend  from  the  Bench  into  the  arena  of  the 
Bar.  If  he  had  seen  fit  to  do  this,  he  might  have  dis- 
covered cpute  as  much  inducement  to  acrimony  and 
acerbity  of  discussion  in  the  wanton  accusations  of 
the  entire  political  life  of  the  United  States,  which 
the  British  Case,  Counter-Case,  and  Argument  con- 
tain, as  Sir  Alexander  did  in  any  thing  which  the 
Cases  and  Argument  of  the  United  States  contained. 
But  he  yielded  to  no  such  temptation.  "He  put 
aside  the  temper  of  the  advocate,"  as  the  Telegraph 
truly  says,  to  speak  "  with  the  impartiality  of  a  jurist 
and  the  delicate  honor  of  a  gentleman."  Accordingly, 
his  opinions  are  without  blemish  either  in  temper  or 
in  language.  He  finds  want  of  due  diligence  in  the 
matter  of  the  Alabama:  and  so  did  the  British  Ar- 
bitrator. He  finds  extraordinary  disregard  of  law  in 
the  matter  of  the  Florida :  and  so  did  the  British 
Arbitrator.  He  finds  a  series  of  acts  of  scandalous 
wrong  perpetrated  by  officers  of  the  British  Govern- 
ment in  both  these  cases :  and  so  did  the  British  Ar- 
bitrator.    He  can  not,  as  the  British  Arbitrator  does, 


ALABAMA   CLAIMS. 


151 


find  justification  for  the  acts  of  negligence  of  British 
Colonial  authorities  in  the  matter  of  the  Shetuindoali 
or  that  of  the  lietrihutwn.  And,  as  might  have  been 
anticij^ated,  his  conception  of  the  duties  of  a  State 
suppose  a  higher  standard  of  national  morality  than 
that  recognized  by  the  British  Arbitrator. 

Mr.  Sta^mpfli's  opinions  are  also  of  considerable 
length,  ]jut  difi'er  from  those  of  Mr.  Adams,  especially 
in  the  form,  which  is  that  customary  among  the  jurists 
of  the  Continent.  He  also,  while  confini  t^  himself  to 
the  most  rigorous  deductions  of  international  law,  in 
discussing  the  acts  of  the  inculpated  Confederate  cruis- 
ers, yet  ^vrites  like  a  statesman,  habituated  to  breathe 
the  air  of  that  "climate"  of  "the  impartiality  of  a 
jurist  and  the  delicate  honor  of  a  gentleman"  which 
was  not  the  "climate"  of  the  British  Arbiti-ator. 

The  opinions  of  the  Vicomte  d'ltajuba  are  very 
brief,  but  in  the  same  form  of  analysis  as  the  opinions 
of  Mr.  Sttempfli.  It  is  to  be  noted,  however,  that,  be- 
yond stating  his  reasoning  and  conclusion  as  to  each 
of  the  inculpated  cruisers,  he  speaks  of  only  one  of  the 
special  questions  argued,  namely,  that  of  the  effect  to 
be  given  in  British  ports  to  the  Confederate  cruisers 
exhibiting  commissions.  As  to  this  point  he  con- 
cludes as  follows : 

"  La  commission  dont  un  tel  navire  est  pourvu,  ne  siiftit  pas 
pour  le  couvrir  vis-a-vis  du  neutre  dont-il  a  viole  la  neutralito. 
Et  comment  le  belligerant  se  plaindrait-il  de  I'application  de 
ce  principe?  En  saisissant  ou  detenant  le  navire,  le  neutre  ne 
fait  qu'empeeher  le  belligerant  de  tirer  profit  de  lafraude  com- 
mise  sur  son  territoire  par  ce  meme  belligerant;  tandis  que, 
en  ne  procedant  point  contre  le   navire  coupable,  le  neutre 


4- 


152 


THE   TREATY    OF   WASHINGTON. 


U    ' 


s'expose  jnstement  a  ce   que   rautrc   belligL'raiit   suspecte   sa 
bo7ine  foi.'''' 

lu  .these  observations,  we  see  tliat  the  Vicomte 
(VltaJLiba  ai)peals  to  the  same  "intuitive  perceptions 
of  right"  which  are  so  iinpahitable  to  the  British  Ay- 
bitrator. 

The  Vicomte  critajul^a  does  not  give  ns  any  opin- 
ion on  the  subject  of  "  due  diligence  generally  consid- 
ered:" which  tends  to  pi'ove  that  his  call  for  argument 
on  that  2:)oiut  was  not  induced  by  any  need  on  his 
part  for  elucidation  of  Counsel. 

The  opinions  of  Count  Sclopis, — not  only  those  in 
which  he  judges  the  particular  cases,  but  especiall}' 
those  in  wdiich  he  discusses  the  questions  of  puljlic 
law,  as  to  which  mere  opinion  was  dra\vn  from  the  Ar- 
bitrators, virtually  at  the  instance  of  Great  Britain, — 
are  instructive  and  interesting  disquisitions,  of  per- 
manent value  as  the  views  of  an  erudite  legist  and  a 
practiced  statesman.  The  paper  on  due  diligence  is 
remarkable  for  its  profound  and  comprehensive  view 
of  that  subject  in  its  higher  rehxtion  to  the  acts  of 
sovereign  States.  In  this  paper,  he  thoroughly  exposes 
the  fallacy  of  the  argument  of  Sir  Roundell  Palmer, 
which  would  lower  the  generality  and  the  greatness 
of  the  Treaty  Kules  to  the  level  of  the  municipal  law 
of  Great  Bi'itain. 

And  now,  having  reviewed  the  stipulations  of  the 
Treaty  in  this  respect,  the  debates  attending  it  both 
before  and  after  its  conclusion,  the  proceedings  of  the 
Tribunal  of  Arbitration,  and  the  separate  opinions  of 
the  Arbitrators,  wt.  come  to  the  consideration  of  what 


;  ! 


ALABAMA   CLAIMS. 


153 


they  actually  decided,  the  immediate  effect  of  the  De- 
cisiou,  and  the  ii;eiiei'al  relation  thereof  to  Great  Brit- 
ain,  to  the  United  States,  and  to  the  other  Govern- 
ments of  Euro])e  and  America. 


• 


REVIEW  OF  THE  DECISION  OF  THE  TRIBUNAL  ON  NATIONAL 

LOSSES. 

To  beii-in,  let  us  see  what  was  the  true  thoucjht  of 
the  Tribunal  regarding  the  class  of  claims,  as  to  whicli 
the  British  Government  displayed  so  much  superftu- 
ous  emotion  subsecjuently  to  the  publication  of  the 
American  Case,  and  which  the  Tribimal  passed  upon, 
in  effect,  without  previous  decision  whether  they  were 
or  were  not  embraced  in  the  Ti'eaty. 

I  have  already  called  attention  to.  the  fact  that  no 
consideration  of  direct  or  indirect^  immediate  or  conse- 
quential^ appears  in  that  opinion  of  the  Tribunal. 
The  Arbitrators  express  a  condusion^  not  the  reasons 
of  the  conclusion.  We  might,  it  is  true,  easily  infer 
those  reasons  from  the  language  in  which  the  conclu- 
sion is  expressed.  That  language  excludes  'all  such 
trivial  questions  as  whether  "  direct "  or  "  indirect," 
and  invokes  us  to  seek  for  the  unexpressed  reasons  in 
some  higher  order  of  ideas.  Meanwhile  we  have,  at 
length,  in  the  final  "  Decision,"  means  of  ascertaining 
the  whole  thought  of  the  Tribunal. 

The  Arbitratoi's  had  to  pass  on  a  claim  of  indemni- 
ty for  the  costs  of  pursuit  of  Confederate  cruisers  by 
the  Government : — a  claim  admitted  to  be  within  the 
jurisdiction  of  the  Tribunal,  and  which  the  Tribunal 
rejects  on  the  ground  that  such  costs  "  ai'e  not,  in  the 


j   ! 


154 


THE  TUEATY   OF   WASIUXCiTON. 


Pi    ! 


jiidgment  of  the  Tribunal,  properly  distinguishable 
from  the  general  expenses  of  the  war  carried  on  by 
the  United  States." 

Here,  the  major  premise  is  assumed  as  already  de- 
termined or  admitted,  namely,  that  "  the  general  ex- 
penses of  the  war"  are  not  to  be  made  the  subject  of 
award.  Why  not?  Because  such  expenses  are  in 
the  nature  of  Indirect  losses  ?  No  such  notion  is  in- 
timated. Because  the  claim,  as  beincc  for  indirect 
losses,  is  not  within  the  purview  of  the  Treaty  ?  That 
is  not  said  or  implied.  Because  such  a  claim  is  be- 
yond the  jurisdiction  of  the  Tribunal?  No:  for  the 
Tribunal  takes  jurisdiction  and  judges  in  fact.  The 
(question  then  remains, — why  is  a  claim  for  losses 
pertaining  to  the  general  exj^enses  of  the  war  to  be 
rejected  ? 

There  can  be  no  mistake  as  to  the  true  answer.  It 
is  to  be  found  in  the  preliminary  opinion  exj^ressed 
by  the  Ai'bitrators. 

The  Tribunal,  in  that  opinion,  says  that  the  contro- 
verted [T:he  so-called  indirect]  claims  "do  not  consti- 
tute, upon  the  principles  of  international  law  applica- 
ble to  such  cases,  good  foundation  for  an  award  of 
compensation  or  computation  of  damages  between  na- 
tions." Why  does  not  the  injury  done  to  a  nation  by 
the  destruction  of  its  commerce,  and  by  the  augmenta- 
tion of  the  duration  and  expenses  of  war,  constitute  "  a 
good  foundation  for  an  award  of  compensation  or  com- 
putation of  damages  between  nations  ?"  The  answer 
is  that  such  subjects  of  reclamation  are  "  not  properly 
distinguishable  from  the  general  expenses  of  war." 


ALABAMA   CLAIMS. 


165 


Let  us  analyze  these  two  separate;  Init  related 
opinions,  and  thus  make  clear  the  intention  of  the 
Tribunal.     It  is  this : 

The  injuries  done  to  a  Belligerent  by  the  failure  of 
a  Neutral  to  exercise  due  diligence  for  the  prevention 
of  belligerent  equipments  in  its  ports,  or  the  issue  of 
hostile  expeditions  therefrom,  in  so  far  as  they  are  in- 
juries done  to  the  Belligerent  in  its  political  cai)acity 
as  a  nation,  and  resolving  themselves  into  an  element 
of  the  national  charges  of  war  sustained  by  the  Bel- 
ligerent in  its  political  capacity  as  a  nation,  do  not, 
"upon  the  principles  of  international  law  ai)plicable 
to  such  cases "  [excluding,  that  is,  the  three  Kules], 
constitute  "  good  foundation  for  an  award  of  compen- 
sation or  computation  of  damages  between  nations." 

Such,  in  my  opinion,  is  the  thought  of  the  Arbitra- 
tors, partially  expressed  in  one  place  as  to  certain 
claims  of  which  they  did  not  take  jurisdiction,  and 
partially  in  another  place  as  to  others  of  which  they 
did  take  jurisdiction, — the  two  partial  statements  be- 
ing complementary  one  of  the  other,  and  forming  to- 
gether a  perfectly  intelligible  and  complete  judgment 
as  to  the  w^hole  matter. 

The  direct  effect  of  the  judgment  as  between  the 
United  States  and  Great  Britain,  is  to  prevent  either 
Government,  when  a  Belligerent,  from  claiming  of  the 
other,  when  a  Neutral,  "  an  award  of  compensation  or 
computation  of  damages "  for  any  losses  or  additional 
charges  or  "general  expenses  of  war,"  which  such  Bel- 
ligerent, in  its  political  capacity  as  a  nation,  may  suf- 
fer by  reason  of  the  want  of  due  diligence  for  the 


156 


TIIK   TREATY  OF  WASHINGTON. 


I  I 


'       I 


!   i 


It!:  I 


prevention  of  violation  of  neutrality  in  tlie  ports  of 
such  Neutral.  That  is  to  say,  the  parties  to  the 
Treaty  of  Washington  are  estopj)e(l  from  claiming 
compensation,  one  of  the  other,  on  account  of  the  na- 
tional injuries  occasioned  by  any  such  breaches  of 
neutrality,  not  because  they  are  hi  direct  losses, — for 
they  are  not, — but  because  they  are  tuitional  losses, 
losses  of  the  State  as  such.  And  each  of  us  may,  in 
controversies  on  the  same  point  with  other  nations, 
allege  the  wo?y/7  authority  of  the  Tribunal  of  Geneva. 

But,  while  national  losses  incuired  by  the  Bellig- 
erent as  a  State  in  consequence  of  such  breaches  of 
neutrality  are  not  to  be  made  the  subject  of  "com- 
pensation or  computation  of  damages,''  all  private  or 
individual  losses  may  be,  under  the  qualifications  and 
limitations  as  to  character  and  amount  found  by  the 
Trilninal,  and  which  will  be  explained  in  treating  of 
that  part  of  the  Decision. 

These  conclusions  are  the  inevitable  result  of  care- 
ful conq^arison  of  the  several  claims  with  the  several 
decisions.  True  it  is,  the  national  claims  of  indem- 
nity for  the  cost  of  the  pursuit  of  the  Confederate 
cruisers  happened  to  come  before  the  Tril)unal  asso- 
ciated wnth  strictly  private  claims,  and  the  strictly 
private  claims  on  account  of  payment  of  extra  war 
premiums  associated  with  national  claims ;  but  these 
are  perfectly  immaterial  incidents,  which  do  not  in 
any  way  affect  appreciation  of  the  opi?no7is  of  the 
Tribunal. 

Another  subject  of  reflection  suggests  itself,  in 
comparing  the  respective  decisions  on  national  and 


I 


ALAIJAMA   CLAIMS. 


157 


(HI  private  losses,  prudiKMnl  by  the  lailurc  of  a  Neu- 
tral to  maintain  neutralit}'. 

We  asscrte'l  the  resi)onsil)ility  of  Great  Britain 
for  the  acts  of  such  of  tlic  Confederate  cruisers  as 
came  within  either  of  the  three  Rules,  just  as  if  those 
cruisers  had  been  fitted  out  or  sup])lied  Ijy  the  Brit- 
ish Government,  to  the  extent  at  least  of  th(;  prizes 
of  private  property  which  those  cruisers  made.  That 
was  the  theory  of  imjiuted  responsiljility.  Any  cruis- 
er enabled  to  make  prizes  by  the  fault  of  tlie  Brit- 
ish Government  was  to  be  regarded  as  pro  tanto  a 
British  cruiser,  and  Great  Britain,  in  the  words  of 
the  British  Counter-Case,  "treated  [in  that  respect] 
as  a  virtual  participant  in  the  war."  The  Tribunal 
seems  to  have  so  held;  that  is,  in  regard  to  the  losses 
of  individual  citizens  of  the  United  States. 

Moreover,  it  was  argued  on  both  sides,  as  by  com- 
mon consent,  that  the  question  between  the  two 
Governments  was  one  of  ^\•ar,  commuted  for  indem- 
nity. 

"  Her  [Great  Britain's]  acts  of  actual  or  constructive  com- 
plicity with  the  Confederates,"  says  the  American  Argument, 
"  gave  to  the  United  States  the  same  riglit  of  war  against  her, 
as  in  similar  circumstances  she  asserted  against  the  Nether- 
lands. 

"  We,  the  United  States,  holding  those  rights  of  war,  have 
relinquished  them  to  accei)t  instead  the  Arbitration  of  this 
Tribunal.  And  the  Arbitration  substitutes  correlative  legal 
damages  in  the  place  of  the  right  of  war." 

This  position  is  clearly  stated  in  the  British  Coun- 
ter-Case as  follows : 

"Her  Majesty's   Government   readily   admits  the  general 


158 


TIIK   TUKATY  OF  WASIIINCJTON. 


f'  ! 


I)) 

f'l 


r 


1- 


"priiiciplo  tluit,  wluTo  an  injury  has  been  doiit'  by  one  nation 
''  to  another,  a  claim  tor  8o;ne  aj»j)ropr':ate  redress  arises,  and 
"that  it  is  on  all  accounts  desirable  that  this  rijjjht  should  be 
"satisfied  by  aniieable  re|»aration  itistead  of  being  cnforei'd  by 
"  war.  All  eivil  society  reposes  on  tins  prineijile,  or  on  a  prin- 
"ciple  analogous  to  this  ;  the  so'  iety  of  nations,  as  well  as  that 
"which  unites  the  individual  hienibers  of  each  particular  com- 
''  mon wealth." 

Now  the  ctiptiife  of  private  property  ou  the  seas, 
it  etin  not  be  denied,  is  one  of  the  methods  of  jmhlic 
war.  Whetlier  siieli  capture  be  made  by  letters  of 
marque,  or  by  regular  men-of  war,  is  immaterial ;  in 
either  form  it  increases  the  resour^.es  of  one  Belliger- 
ent and  it  weakens  those  of  the  other;  and  if  the 
Neutral  fits  out  [or,  in  violation  of  neutral  duty,  suf 
fers  to  be  fitted  out  in  its  ports,  which  is  the  same 
thing]  cruisers  in  aid  of  one  of  the  Belligerents,  such 
Neutral  becomes  a  virtual  participant  in  the  war,  not 
only  prolonging  it  and  augmenting  its  expenses,  but 
perhaps  producing  decisive  efi^ects  adverse  to  the 
other  Belligerent.  These  are  the  national  losses,  or, 
as  the  British  Government  insists,  the  indirect  losses, 
inflicted  by  neglect  or  omission  to  discharge  the  ob- 
ligations of  neutrality. 

In  deciding  that  such  losses, — that,  in  general, 
the  national  charges  of  war, — can  not  by  the  law  of 
nations  be  regarded  as  "good  foundation  for  an 
award  of  compensation  or  computation  of  damages 
between  nations,"  the  Tribunal  in  eftect  relegated 
that  question  to  the  unexplored  field  of  the  discre- 
tion of  sovereicjn  States. 

Claims  of  indemnity  for  the  national  losses  grow- 


ALAIJAMA  CLAIMS. 


150 


iiig  out  of  a  state  of  war  being  thus  disposed  of,  w<' 
arrive  at  the  great  elaf-s  of  private  losset?:,  Avliieh  eliief- 
]y  oceiij)ied  the  time  of  tlic  Trihiiiial. 


i 


an 


i 


DKCISION    AS   TO    I'lnVATH   LOSSES. 

The  Arbitrators,  assuiiiiiig  that,  pursuant  to  the 
eonmuuid  of  tlie  Treaty,  they  are  to  be  governed  by 
the  three  lluk;s,  and  the  principles  of  international 
law  not  inconipati}>le  thertnvith,  proceed  to  lay  down 
the  following  prefatory  positions,  namely : 

1.  "Thf  'due  diligeiico'  referred  to  in  tlie  tirst  find  third  ot" 
the  said  lliiles,  oiiglit  to  be  exercised  by  iietitnil  (Joveriimeiits 
in  exact  j)roportioii  to  the  risks  to  whicli  either  of  the  I'x'lliger- 
ents  may  be  exposed  from  a  failure  t'  fultill  the  obligations  of 
neutrality  on  their  part. 

2.  "The  circumstances,  out  f  which  the  facts  constituting  the 
subject-matter  of  the  ])resent  controversy  arose,  were  of  a  na- 
ture to  call  for  the  exercise  on  the  part  of  Her  I'ritannic  Maj- 
esty's Government  of  all  possible  solicitude  for  tiio  observance 
of  the  rights  and  the  duties  involved  in  the  prochiraation  of 
neutrality  issued  by  Iler  ^NFajesty  on  the  13th  day  of  3Iay,  ]  861. 

3.  "Tlie  eifects  of  a  violation  of  neutrality  committed  by 
means  of  the  construction,  equipment,  and  armament  of  a  ves- 
sel are  not  done  away  with  by  any  commission  which  the  (Jov- 
ernment  of  the  belligerent  PoAver  benefited  by  the  violation  of 
neutrality  may  afterward  have  granted  to  that  vessel ;  and  the 
ultimate  step,  by  which  the  offense  is  completed,  can  not  be 
admissible  as  a  ground  for  the  absolution  of  the  ofiender;  nor 
can  the  consummation  of  his  fraud  become  the  means  of  estab- 
lishing his  innocence. 

4.  "The  privilege  of  ex-territoriality  accorded  to  vessels  of 
war  has  been  admitted  into  the  laws  of  nations,  not  as  an  ab- 
solute right,  but  solely  as  a  proceeding  founded  on  the  princi- 
ple of  courtesy  and  mutual  deference  between  different  na- 
tions, and  therefore  can  never  be  appealed  to  for  the  protec- 
tion of  acts  done  in  violation  of  neutrality. 


!    . 


100 


THE   TREATY    OF   WASllIXGTOX. 


5.  "  The  absence  of  a  previous  notice  can  not  be  regarded  as 
a  failure  in  any  consideration  re(<uired  by  tlie  law  of  nations, 
in  those  cases  in  which  a  vessel  carries  with  ^t  its  own  con- 
demnation. 

C.  "  In  order  to  ini})art  to  any  supplies  of  coal  a  .'haracter 
inconsistent  with  tlie  second  Rule,  ])rohibiting  the  use  of  neu- 
tral ports  or  waters,  as  a  base  of  naval  operations  for  the  Bel- 
ligerent, it  is  necessary  that  the  said  su}>})iies  should  be  con- 
nected with  special  circumstances  of  time,  of  persons,  or  of 
place,  which  may  combine  to  give  them  such  character." 

Keepiug  in  vie^v  these  rules  of  construction,  the 
Tribunal  proceeds  to  judge  the  British  Government 
in  regard  to  each  of  the  Confederate  cruisers  before 
them. 

As  to  the  Alabama^  originally  "No.  290,"  construct- 
ed in  the  port  of  Liverpool  and  armed  near  Terceira, 
through  the  agency  of  the  Agrippina  and  Baliama, 
dispatched  from  Great  Britain  to  that  end,  the  Tri- 
bunal decides  that  the  British  Government  failed  to 
use  due  diligence  in  the  performance  of  its  neutral 
obi  locations : 

1.  liecause  "  it  omitted,  notwitlistanding  the  warnings  and 
official  representations  made  by  the  di})lomatic  agents  of  the 
United  States  during  the  construction  of  the  said  '  No.  290,'  to 
take  in  due  time  any  eifective  measures  of  prevention,  and  that 
those  orders  whicli  it  did  give  at  last,  for  tiie  detention  of  the 
vessel,  were  issued  so  late  that  their  execution  was  not  prac- 
ticable;" 2.  Because, "  after  the  escape  of  that  vessel,  the  meas- 
ures taken  for  its  pursuit  and  arrest  were  so  imperfect  as  to 
lead  to  no  residt,  and  tlierefore  can  not  be  considered  sufficient 
to  release  Great  I^ritain  from  the  responsibility  already  in- 
curred;" 3.  Because,  "  in  despite  of  the  violations  of  the  neu- 
trality of  Great  Britain  committed  by  the  '  290,'  this  same  ves- 
sel, later  known  as  the  Confederate  cruiser  Alabama^  was  on 
several  occasions  freely  admitted  into  the  j)orts  of  Colonies  of 


t 


ALABAMA  CLAIMS. 


161 


Great  Britain,  instead  of  being  proceeded  against,  as  it  ouglit  to 
have  been,  in  any  and  every  port  within  British  jurisdiction 
in  which  it  might  liave  been  found ;"  4.  And  because  "  the 
Government  of  her  Britannic  Majesty  can  not  justify  itself  for 
a  faihirc  in  due  diligence  on  the  plea  of  the  insufficiency  of  the 
legal  means  of  action  which  it  possessed." 

As  to  the  Florida^  originally  called  Oreto^  the  Tri- 
bunal decides  that  the  British  Government  failed  to 
use  due  diligei  ce  to  fulfill  its  duties: 

1.  Because  "it  results  from  all  the  fjicts  relative  to  the  con- 
struction of  the  Oreto  in  the  port  of  Liverpool,  and  to  its  issue 
therefrom,  which  facts  failed  to  induce  the  Authorities  in  Great 
Britain  to  resort  to  measures  adequate  to  prevent  the  violation 
of  the  neutrality  of  that  nation,  notwithstanding  the  warnings 
and  repeated  representations  of  the  Agents  of  the  United 
States;"  2.  J)ecause"it  likewise  results  from  all  the  facts  rela- 
tive to  the  stay  of  the  Oreto  at  Nassau,  to  her  issue  from  that 
port,  to  her  enlistment  of  men,  to  her  supplies,  and  to  her  arma- 
ment Avith  the  co-operation  of  the  British  vessel  Prince  Alfred 
at  Green  Cay,  that  there  v.^a5  negl'.gence  on  the  part  of  the 
British  Colonial  Authorities  ;"  3,  Because,  "  notwithstanding 
the  violation  of  the  neutrality  of  Great  Britain  committed  by 
the  Oreto,  this  same  vessel,  later  known  as  the  Confederate 
cruiser  Florida,  was  nevertheless  on  several  occasions  freely 
admitted  into  the  ports  of  British  Colonies ;"  and,  4.  Because 
"the  judicial  acquittal  of  the  Oreto  at  Nassau  can  not  relieve 
Great  Britain  from  the  responsibility  incurred  by  lier  under  the 
principles  of  international  law ;  nor  can  the  fact  of  the  entry 
of  the  Florida  into  the  Confederate  port  of  Mobile,  and  of  its 
stay  thert!  during  four  months,  extinguish  the  responsibility 
previous  to  that  time  incurred  by  Great  Britain." 

As  to  the  Shenandoah,  originally  called  the  Sea 
King,  the  Tribunal  decides  that  the  British  Govern- 
ment is  not  chargeable  with  any  failure  ':i  the  use  of 
due  diligence  to     '.fill  the  duties  of  neutn'ity  respect- 

L 


162 


THE  TliEATY  OF  WASHINGTON. 


ing  her  during  the  period  of  time  anterior  to  her  en- 
try into  the  port  of  Melbourne :  but — 

"  That  Great  IJritain  has  failed,  by  omission,  to  fulfill  the  du- 
ties prescribed  by  the  second  and  third  of  the  Kules  aforesaid, 
in  the  case  of  this  same  vessel,  from  and  after  her  entry  into 
Hobson's  Bay,  ai^l  is  therefore  responsible  for  all  acts  commit- 
ted by  that  vesst  1  after  her  departure  from  Melbourne,  on  the 
18th  day  of  February,  1865." 

The  Tribunal  further  decides  as  to  the  Tuscaloosa^ 
tender  to  the  Alabama^  and  as  to  the  Clarence^  the 
Tacony^  and  the  Archer^  tenders  to  the  Florida : 

"That  such  tenders  or  auxiliary  vessels  being  properly  re- 
garded as  accessories,  must  necessarily  follow  the  lot  of  their 
principals,  and  be  submitted  to  the  same  decision  which  ap- 
plies to  them  respectively." 

As  to  the  other  vessels  accused,  namely,  the  Iletrl- 
hiition^  Georgia.,  Sumter,  Nctsliville,  Tallaliassee,  and 
Chichamauga,  the  Tribunal  decided  "  that  Great  Brit- 
ain has  not  failed,  by  any  act  or  omission,  lo  fulfill 
any  of  the  duties  prescribed  by  the  three  Rules  of 
Article  VI.  in  the  Treaty  of  Washington,  or  by  the 
principles  of  international  law  not  inconsistent  there- 
with." 

Thus  far  the  Tribunal  had  dealt  onlv  with  the  con- 
siderations  of  law  and  of  fact  applicable  to  the  gener- 
al question  of  the  naked  legal  responsibility  of  Great 
Britain. 

As  preparatory  to  the  ulterior  question  of  the  sum 
to  be  awarded  to  the  United  States  by  way  of  ind  3m 
nity,  the  Tribunal  decides ;  1.  "  That  prospective  earn- 
ings can  not  properly  be  made  the  subject  of  compen- 


ALABAMA  CLALMS. 


163 


sation,  inasmucli  as  tliey  depend  in  tlieir  nature  upon 
future  and  uncertain  contingencies ;"  2.  "In  order  to 
arrive  at  an  equitable  compensation  for  the  dama- 
ges which  have  been  sustained^  it  is  necessary  to  set 
aside  all  double  claims  for  the  same  losses,  and  all 
claims  for  'gross  freights'  so  far  as  they  exceed  'net 
freights ;'  "  3.  "  It  is  just  and  reasonable  to  allow  in- 
terest at  a  reasonable  rate." 

Finally,  the  Tribunal,  deeming  it  preferable,  in  ac- 
cordance with  the  spirit  and  the  letter  of  the  Treaty 
of  Washington,  to  adopt  the  form  of  adjudication  of 
a  sum  in  gross  rather  than  to  refer  the  subject  of 
compensation  to  Assessors,  concludes  as  follows : 

"  The  Tribunal,  making  use  of  the  authority  conferred  upon 
it  by  Article  VII.  of  the  said  Treaty,  by  a  majority  of  four 
voices  to  one,  awards  to  the  United  States  the  sum  of  fifteen 
millions  five  hundred  thousand  dollars  in  gold  as  the  indemni- 
ty to  be  paid  by  Great  Britain  to  the  United  States  for  the 
satisfaction  of  all  the  claims  referred  to  the  consideration  of  the 
Tribunal,  conformably  to  the  provisions  contained  in  Article 
VII.  of  the  aforesaid  Treaty. 

"  And,  in  accordance  with  the  terms  of  Article  XI.  of  the 
said  Treaty,  the  Tribunal  declares  that  '  all  the  claims  referred 
to  in  the  Treaty  as  submitted  to  the  Tribunal  are  hereby  fully, 
perfectly,  and  finally  settled.' 

"  Furthermore,  it  declares  that  each  and  every  one  of  the  said 
claims,  whether  the  same  may  or  may  not  have  been  presented 
to  the  notice  of,  or  made,  preferred,  or  laid  before  the  Tribunal, 
shall  henceforth  be  considered  and  treated  as  finally  settled, 
barred,  and  inadmissible." 

It  deserves  to  be  remembered  that  the  British  Ar- 
bitrator, and  he  alone,  refused  to  sign  the  Decision. 
No  good  reason  appears  to  justify  this  refusal,  seeing 


■I 

I 


'n 


■HNI 


164 


THE  TREATY   OF  WASHINGTON. 


that  the  signature  is  but  authentication,  and  the  body 
of  the  Decision  sets  forth  all  the  differences  of  opinion 
existing  among  the  Arbitrators.  Thus,  Mr.  Adams 
and  Mr.  Stsempfli  were  overruled  on  two  questions ; 
and  yet  they  ^signed  the  Act.  So  the  Vicomte  dTta- 
jubtl  was  overruled  on  the  great  question  of  the  lia- 
bility of  Great  Britain  for  the  Shenandoali ;  and  yet 
he  signed  the  Act.  In  separating  himself  from  his 
colleagues  in  this  respect,  the  British  Arbitrator  ex- 
hibited himself  as  what  he  was,  as  most  of  his  ac- 
tions in  the  Tribunal  demonstrated, — as  his  subse- 
quent avowal  established, — not  so  much  a  Judge,  oi' 
an  Arbitrator,  as  the  volunteer  and  officious  attor- 
ney of  the  British  Government. 


[f  ij 


it-! 


Ij! 

I*  ;  i 

vr 


EFFECT  OF  THE  AWARD. 

In  reflecting  on  this  Award,  and  seeking  to  deter- 
mine its  true  construction,  let  us  see,  in  the  first  place, 
what  it  actually  expresses  either  by  inclusion  or  ex- 
clusion. 

The  Award  is  to  the  United  States,  in  conformity 
with  the  letter  of  the  Treaty,  which  has  for  its  well- 
defined  object  to  remove  and  adjust  complaints  and 
claims  "  on  the  part  of  the  United  States." 

But  the  history  of  the  Treaty  and  of  the  Arbitra- 
tion shows  that  the  United  States  recover,  not  for  the 
benefit  of  the  American  Government  as  such,  but  of 
such  individual  citizens  of  the  United  States  as  shall 
appear  to  have  suffered  loss  by  the  acts  or  neglects 
of  the  British  Government.  It  is,  however,  not  a  spe- 
cial trust  legally  aftected  to  any  particular  claim  or 


*r^"— * 


ALABAMA   CLAIMS. 


-« /I " 


claimants,  but  a  general  fund  to  be  administered  by 
the  United  States  in  good  faith,  in  conformity  with 
their  own  conceptions  of  justice  and  equity,  within 
the  range  of  the  Award.  If,  according  to  any  theory 
of  distribution  adoj)ted  by  the  United  States,  the 
sum  awarded  prove  inadeijuate,  we  have  no  claim  on 
Great  Britain  to  supply  the  deficiency :  on  the  other 
hand,  if  the  Award  should  prove  to  be  in  excess,  we 
are  not  accountable  to  Great  Britain  for  any  balance. 
On  this  point,  precedents  exist  in  the  diplomatic  his- 
tory of  Great  Britain  herself 

The  Tribunal  does  not  afi^brd  us  any  rules  of  limit- 
ation aftecting  the  distiibution  of  the  Award,  un- 
less in  the  declaration  that  "prospective  earnings," 
"  double  claims  "  for  the  same  losses,  and  "  claims  for 
gross  freights,  so  far  as  they  exceed  net  freights,"  can 
not  properly  be  made  the  subject  of  compensation, — 
that  is  to  say,  as  against  Great  Britain. 

Nor  does  the  Tribunal  define  aiSrmatively  what 
claims  should  be  satisfied  othei'wise  than  in  the  com- 
prehensive terms  of  the  Award,  which  declares  that 
the  sum  awarded  is  "the  indemnity  to  ])e  paid  by 
Great  Britain  to  the  United  States  for  the  satisfac- 
tion of  all  tlie  claims  referred  to  the  coiiHideration  of 
tJie  Trihunal^  conformably  to  the  provisions  contained 
in  Article  VII.  of  the  aforesaid  Treaty." 

The  Arbitrators, — be  it  observed, — do  not  say  for 
the  satisfaction  of  certain  specific  claims  among  those 
referred  to  the  consideration  of  tlie  Tribunal,  but  of 
"  all  the  claims  "  so  referred  conformably  to  the  pro- 
visions of  the  Treaty. 


, 


CT 


166 


THE  TREATY   OF  WASHINGTON. 


II; 

V! 


Now,  the  practical  question  which  arises  is  wheth- 
er the  schedules  of  claims,  which  were  pi'esented  to 
the  Tri))unal  as  documentary  proofs  on  the  part  of 
the  United  States,  are  conclusive,  either  as  to  what 
they  contain  or  what  they  do  not  contain,  to  establish 
rules  of  distribution  under  the  Award. 

This  point  is  settled  by  what  occurred  in  discus- 
sions before  the  Tribunal. 

Great  Britain  had  presented  a  table,  composed  in 
large  part  of  estimates,  a])])reciations,  and  arbitrary- 
or  suppositious  averages:  in  consequence  of  which 
the  United  States  presented  other  tables,  to  which 
the  British  Agent  objected  that  these  tables  compre- 
hended claimants,  and  subjects  of  claim,  not  comprised 
in  the  actual  schedules  filed  by  the  United  States :  to 
which  the  American  Agent  replied  by  showing  that 
the  Tribunal  had  before  it,  in  virtue  of  the  Treaty, 
all  the  reclamations  made  by  the  United  States  in 
the  interest  of  individuals  injured,  and  comprised  un- 
der the  generic  name  of  Alabama  Claims  [le  tribunal 
reste  saisi  de  la  question  de  toutes  les  reclamations 
faites  par  les  Etats-Unis  dans  I'interet  des  individus 
leses,  et  comprises  sous  le  nom  generique  de  reclama- 
tions de  VAlahauut], 

Some  discussions  on  the  same  subject  afterward  oc- 
curred between  Mr.  St^empfli  and  Sir  Alexander  Cock- 
burn,  which  conclusively  prove  that  the  result  reached 
did  not  accept  as  binding  either  the  tables  presented 
by  the  United  States  or  the  deductions  therefrom 
claimed  by  Great  Britain.  The  estimate  of  Mr. 
Staempfli  seems  to  have  been  the  basis  of  conclusion ; 


ALAIJAMA   CLAIMS. 


167 


and  that  estimate  is  founded  on  dividing  tlie  differ- 
ence between  the  American  estimate  of  $14,437,000, 
and  the  British  estimate  of  $7,074,000,  the  mean  of 
which  is  $10,905,000 :  which  mean  does  not  in  any 
sort  represent  the  actual  claims  of  the  United  States. 

Indeed,  one  of  the  Arbitrators  expressly  declared 
that,  in  arriving  at  a  conclusion,  the  Arbitrators  were 
not  to  be  regarded  as  making  an  assessment,  or  con- 
fining themselves  to  the  schedules,  estimates,  or  tables 
of  either  of  the  two  Governments. 

Whether  the  sum  awarded  be  adequate,  depends,  in 
my  opinion,  on  whether  distribution  be  made  among 
actual  losers  only  and  cituens  of  the  United  /States. 

ALIDITY   OF  THE   AWATID. 

The  principles  of  the  Award  are  in  conformity  with 
the  Rules  of  the  Treaty,  which  do  but  embody  in  pre- 
cise language  the  traditional  policy,  inaugurated  by 
Washington  with  the  active  support  of  Jefferson,  pro- 
fessed by  every  successive  President  of  the  United 
States,  and  a-^thenticated  by  repeated  Acts  of  Con- 
gress. 

That  Great  Britain  loyally  accepts  the  Award,  and 
will  in  due  time  pay  to  the  United  States  the  amount 
awarded,  it  is  impossible  to  doubt.  The  Queen's 
speech,  at  the  opening  of  the  present  session  of  Par- 
liament, not  only  declares  the  acquiescence  of  the 
British  Government  in  the  Award,  but  also  recom- 
mends speedy  payment  in  conformity  with  the  tenor 
of  the  Treaty. 

And  while  prominent  members  of  both  Houses, 


11 


m 


168 


TIFE   TUEATY   OF   ^\ ASIIINGTON. 


\ 

" 

11 

i 

ti 

^lll 

! 

! 

1 

n 

i^^— f 

sucli  as  the  Earl  of  Derby,  the  Marquess  of  Salis})ury, 
and  Lord  Cairns,  in  tlie  House  of  Lords,  and,  in  the 
House  of  Commons,  Mr.  Disraeli,  Mr.  Horsman,  and 
others,  spoke  complaiuingly  of  the  Treaty,  and  of  the 
new  Rules,  rather  than  of  the  Award,  yet  Lord  Grran- 
ville,  the  Marquess  of  Ripon,  and  the  Lord  Chancel- 
lor, in  one  House,  and  Mr.  Gladstone,  Mr.  Laing,  Mr. 
Lowe,  and  others,  in  the  other  House,  defended  the 
whole  transaction  with  its  results,  as  alike  beneficial 
to  Great  Britain  and  the  United  States. 

Among  the  discontented  persons  is  Mr.  Laird,  who 
finds  himself  characterized  as  one  of  those  who  prefer 
"private  gain  to  public  honor,"  and  who  seems  to 
think  that  the  Government  of  that  day  did  not  in- 
vestigate  him  and  his  family  so  much  as  it  might  and 
should  have  done  to  the  end  of  detecting  and  expos- 
ing the  false  pretenses  with  which  they  covered  up 
the  illegal  destination  of  the  Alabama.  Lord  Redes- 
dale  also  continues  to  mourn  over  the  insensibility 
of  the  British  Government  to  his  partnership  argu- 
ment, and  refuses  to  be  comforted,  although  the  Gov- 
ernment did,  in  fact,  present  the  argument  ^vith  all 
possible  seriousness  in  the  British  Counter-Case  and 
elsewhere,  in  season  to  ]  ave  it  distinctly  responded 
to  by  the  Counsel  of  the  United  States  (Argument, 
p.  479  and  «6$'.),  and  considered  or  not  considered  by 
the  Tiibunal. 

The  elaborate  speeches  of  the  Earl  of  Derby  and 
Mr.  Disraeli  sufficiently  indicate  the  footing  on  which 
objection  to  the  Treaty  and  to  the  Award  is  to  be 
placed  in  England.     Little  is  said  in  criticism  of  the 


ALAHAMA    CLAIMS. 


1C9 


amount  awarded  as  indemnity.  Earl  Granville,  in- 
deed, does  not  foil  to  remind  tlie  Earl  of  Derby  of  the 
admission  made  hy  the  latter  in  the  House  of  Com- 
mons, to  the  effect  that  the  Americans  were  very 
likely  to  establish  tlicir  claims,  or  some  of  them  at 
least,  and  to  get  their  money.  This  admission  on  the 
part  of  Lord  Stanley  evinced  his  manliness  and  truth- 
fulness. Even  the  Chief  Justice  at  Geneva  was  forced 
to  concede  the  i-esponsibility  of  Great  Britain  for  the 
acts  of  the  Alaboinr^  and  did  not  very  skillfully  es- 
cape making  the  same  concession  as  to  the  Florida. 

The  marvel  is,  that  Lord  Russell  should  have  so 
persistently  refused  to  agree  to  any  terms  of  redress, 
when  he  himself  could  write  to  Lord  Lyons  on  the 
27th  of  March,  1863,  "  that  the  cases  of  thGAlabmna 
and  Ovefo  were  a  scandal,  and,  in  some  degree,  a  re- 
proach to  our  laws."  I  demand  of  myself  sometimes, 
in  reflecting  on  the  strange  obstinacy  of  Lord  Russell 
in  this  respect,  as  contrasted  Avith  the  conduct  of  the 
Earl  of  Derby,  the  Earl  of  Clarendon,  and  Earl  Gran- 
ville, whether  there  be  not  some  mystery  in  the  mat- 
ter, some  undisclosed  secret,  some  unknown  moral  co- 
ercion, to  account  for  and  explain  the  conduct  of  Lord 
Russell  ?  The  extraordinary  incident  of  the  failure 
of  the  Government  to  obtain  from  the  LaAv  Officers 
of  the  Crown  any  response  to  the  call  for  their  opin- 
ion in  season  to  detain  the  Alabama, — which  incident 
Sir  Roundell  Palmer  vainly  attempted  to  explain  at 
Geneva, — w^ould  really  tend  to  make  one  suspect  that 
some  member  of  the  Government  more  powerful  than 
himself  had  vlefeated  those  good  intentions  of  Lord 


170 


THK   TUKATY   OF  WASHINGTON. 


}i 


m 


1 1  i 

•»   : 


"Rnssoll,  with  wliicli  ho  is  credited  by  Mr.  Adams. 
May  it  not  have  bi^cn,  must  it  not  liave  been,  Lord 
Paliuerstoii  'i  Is  Earl  Russell  solely  responsiljle  for 
the  deplorable  errors  of  that  A<lHiiiiistratiou?* 

*  T  repeat,  in  Great  Britain  issue  is  not  to  be  made  on  the 
pecuniary  part  of  the  Award,  but  on  tlie  construction  of  the 
opinions  expressed  and  tlie  legal  conclusions  arrived  at  by  the 
Tribunal  of  Arbitration. 

The  opinions  of  «/^  tlic  Arbitrators  in  the  case  of  the  Alaba- 
»nrt,  including  that  of  the  l^ritish  Arbitrator,  are  concurrent  to 
the  effect  that,  by  reason  of  the  mendacity  of  her  builders,  the 
Lairds,  co-operating  with  corruption,  negligence,  or  stupidity 
on  the  part  of  the  Board  of  Customs,  the  British  Government 
was  made  responsible  for  the  depredations  committed  by  her 
on  the  commerce  of  the  United  States. 

But  the  circumstances  of  the  actual  escape  of  the  Alabama 
reveal  a  singular  imperfection  in  the  administrative  mechanism 
of  the  British  Government. 

On  the  23d  of  July,  1862,  the  British  Government  was 
aroused  from  its  indifference  in  regard  to  the  equipment  of  the 
Alabama,  by  receiving  from  ]\Ir,  Adams,  Avith  some  other 
papers,  an  opinion  of  a  Queen's  Counselor,  Mr.,  now  Sir  Robert, 
Collier,  to  the  effect  that,  if  the  Alabama  were  suffered  to  .de- 
part, the  Board  of  Customs  and  the  Government  would  incur 
"heavy  responsibility."  The  case  had  become  urgent.  The 
Alabama  might  sail  at  any  moment.  Lord  John  Russell  has- 
tened to  hide  himself  under  the  robes  of  the  "  Law  Officers  of 
the  Crown," — that  is  to  say.  Sir  John  ILarding,  the  Queen's  Ad- 
vocate-General ;  Sir  William  Atherton,  the  Attorney-General ; 
and  Sir  Roundell  Palmer,  the  Solicitor-General. 

But  the  oracles  did  not  speak  until  the  29th  of  July,  and 
then  advised  detention  ;  in  consequence  of  which,  on  the  morn- 
ing of  that  day,  the  Alabama,  whose  managers  aj)pear  to  have 
had  intimate  knowledge  of  every  step  taken  or  not  taken  by 
the  Government,  departed  from  Liverpool. 

Lord  John  Russell,  in  a  conference  with  Mr.  Adams  on  the 
31st  of  July,  imputed  this  misadventure  to  "the  sudden  devel- 


AJ.ABAMA  CLAIMS. 


171 


Hi 


It  deserves  to  be  noted  in  this  relation  that  al- 
though Edwards  and  possibly  sonic;  other  of  t^'e  pub- 


opnieiit  of  a  inuhuly  of  tlio  (Queen's  Advocute,  Sir  John  I). 
Ilardini:^,  whicli  had  utterly  incapacitcd  him  for  the  transaction 
of  business.  This,"  ho  added,  "had  made  it  necessary  to  call 
in  other  j^arties  [ho  does  not  say,  others  of  the  JjUio  Officers], 
whoso  o])inion  had  been  at  last  f/iven  for  the  detention  of  the 
yun-boat." 

The  Counsel  of  the  United  States,  in  their  Ar<rument,  invite 
attention  to  tlie  nnsatisfactoriness  of  this  explanation.  They 
found  in  the  Documents  annexed  to  the  IJritish  Case  eight 
opinions  of  the  "Law  Officers  of  the  Crown,"  prior  to  that  of 
July  20th,  «//  of  10 hie h,  except  one  dated  June  iiOth,  are  signed 
by  Sir  John  Harding,  and  also  either  by  Sir  William  Atherton 
or  by  Sir  lioundell  J*almer.  Thereuj)on,  we  inferred  that  the 
Queen's  Advocate  had  become  sick  on  or  before  the  30th  of 
June;  and  we  also  inferred  that  "it  was  not  necessary  on  the 
29th  of  July  to  call  in  new  parties,  but  only  to  call  upon  the 
old."  These  inferences  were  legitimate,  and  were  confirmed  in 
the  sequel  by  the  highest  authority. 

But  thereupon  the  British  Arbitrator,  after  speaking  of  the 
last  inference  as  "  an  ungenerous  sneer,"  remarks : 

"The  unworthy  insinuation  here  meant  to  be  conveyed  is, 
that  Lord  Russell  stated  that  which  was  untrue, — an  insin- 
uation which  will  be  treated  as  it  deserves  by  every  one  who 
knows  him.  It  is  obvious  that  Mr.  Adams  must,  in  tiiis  par- 
ticular, have  misunderstood  his  Lordship." 

The  Chief  .Justice  unconsciously  admits  that  if  Lord  Russell 
said  this,  "he  stated  that  which  was  untrue,"  and  expects  us  to 
disbelieve  Mr.  Adams  in  order  to  shield  Lord  Russell. 

I  prefer  to  believe  Mr.  Adams.  Nay,  the  statement  imputed 
to  Lord  Russell  by  Mr.  Adams  is  in  substance  reaffirmed  and 
adopted  in  the  British  Case  [p.  118]. 

The  senseless  "udice  which  fills  the  mind  of  the  Chief 
Justice  in  referent  >  to  the  United  States,  their  Agent,  and  their 
Counsel,  is  rendered  the  more  conspicuous  here  by  the  fact 
that,  when  he  threw  out  this  "  ungenerous  sneer"  and  this  "  un- 


II 

i) 


I 


172 


TIIK  TIJKATV   OK   WASIIINCTON. 


lie  officers,  whoso  iKigligcnce  or  fraud  lias  reflected  so 
seriously  on  the  British  (ioveruineut,  may  have  been 


worthy  accusation"  of  his  as^alnst  the  American  Counsel,  he  had 
before  hii  i  a  statement  on  \\iv  sul)ject,  presented  to  the  Tribu- 
nal of  Arbitration  by  Sir  Roundell  Palmer,  as  follows: 

"  Sir  John  Ilardini;  was  ill  from  the  latter  part  of  June,  1802, 
and  did  not,  after  that  time,  attend  to  Govenmient  business. 
It  was  not,  however,  known,  until  some  weeks  afterward,  that 
he  was  unlikely  to  recover;  nor  did  the  disorder  undergo,  till 
the  end  of  .July,  such  a  development  as  to  make  the  (iovernment 
aware  that  the  case  was  one  of  permanent  mental  alienation. 

"Althousjjh,  when  a  J^aw  Otticer  was  ill,  he  would  not  be 
troubled  with  ordinary  business,  it  was  quite  consistent  with 
probability  and  ex])eriencc  that,  in  a  case  of  more  than  usual 
importance,  it  would  be  desired,  if  ])ossiblc,  to  obtain  the  ben- 
efit of  his  opinion.  Under  such  circumstances,  the  papers 
would  naturally  be  sent  to  his  private  house ;  and,  if  this  was 
done,  and  if  he  was  unable  to  attend  to  them,  some  delay  would 
necessarily  take  place  before  the  impossibility  of  his  attending 
to  them  was  known. 

"Lord  Russell  told  Mr.  Adams  [July  31,  18G2]  that  some 
delay  had,  in  fact,  occurred  with  respect  to  the  Alaha7na  in 
consequence  of  Sir  John  Harding's  illness.  He  could  not  have 
made  the  statement,  if  the  fact  were  not  really  so ;  because, 
whatever  the  fact  was,  it  must  have  been,  at  the  time,  known 
to  him.  The  very  circumstance  that  Sir  J.  Harding  had  not 
already  advised  upon  the  case  in  its  earlier  stage  might  be  a 
reason  why  it  should  be  wished  to  obtain  his  opinion. 

"  Sir  J.  Harding  and  his  wife  are  both  [some  years  since] 
dead ;  so  are  Sir  W.  Atherton  [the  then  Attorney-General]  and 
his  wife ;  no  information,  therefore,  as  to  the  circumstances 
which  may  have  caused  delay,  with  respect  to  the  delivery  at 
their  private  house,  or  the  transmission  and  consideration  of 
any  papers  on  this  subject,  can  now  be  obtained  from  them. 

"  The  then  Solicitor-General  was  Sir  R.  Palmer,  wdio  is  able 
to  state  positively  that  the  first  time  he  saw  or  heard  of  the 
papers  sent  to  the  Law  Ofticers  \i.  e.,  all  three  Law  Officers]  on 


■MmMM 


ALABAMA  CLAIMS. 


173 


dismissed,  yet  it  does  not  n})})ear  that  any   of  the 
guilty  parties,  such  as  Laird,  Miller,  Thomas,  Prioleau, 


the  23(1  and  25tli  or  2Gtli  of  July,  was  on  the  evening  of  Mon- 
<1ay,  the  2Hlh  of  July,  when  he  was  sunnnoned  by  tlie  Attor- 
ney-(J('neriil,  Sir  W.  Atherton,  to  consider  tlu'ni  in  consultation, 
and  when  the  advice  to  l>e  given  to  the  (iovernnient  was  agreed 
upon."  Sir  Iv.  Palmer  thinkH  it  his  duty  to  add,  that  "  no  (iov- 
ernnient ever  had  a  more  diligent,  conscientious,  and  laborious 
servant  than  Sir  W.  Atherton ;  and  that  it  is  in  the  last  degree 
tiidikely  that  he  would  have  been  guilty  of  any  negligence  or 
unnecessary  delay  in  tlie  consideration  of  papers  of  such  im- 
portance." 

We  thus  learn  that  in  the  latter  ])art  of  June,  as  the  Amer- 
ican Counsel  had  sui)posed,  Sir  John  Harding  was  unable  to 
.attend  to  the  business  of  the  (Tovernment.  Next,  we  are  in- 
formed that  tlie  papers  might  have  been  sent  to  his  ])r!vate 
house,  to  remain  there  unattended  to ;  but  it  is  not  asserted  that 
they  icere  so  sent  in  fact.  Nay,  we  are  left  to  conjecture  that 
they  might  have  been  sent  to  the  house  of  Sir  William  Ather- 
ton ;  hut  it  is  not  asserted  that  they  icere.  Indeed,  Sir  Ixoundell 
Palmer  speaks  of  "the  delivery  at  their  private  house,"  mean- 
ing apparently  "houses."  Next,  we  are  asked  to  believe  that, 
because  of  the  death  of  "  Sir  J.  Harding  and  his  wife,"  and  that 
of  "Sir  W.  Atherton  and  his  wife,"  no  means  exist  to  explain 
the  fatal  delay  in  this  case,  by  reason  of  wliich  so  much  loss 
and  shame  have  been  brought  on  Great  Britain. 

Was  it  ever  before  imagined  that  the  death  of  an  Advocate- 
General  or  an  Attorney-General,  and  their  wives,  should  leave 
a  Government  wholly  without  means  of  knowledge  on  such  a 
subject,  or  should  be  put  forward  to  explain  such  delay  of  ac- 
tion on  the  part  of  Ministers  ? 

Who  carried  the  papers  to  the  house  either  of  Sir  John 
Harding  or  Sir  William  Atherton,  or  both  ?  Why  did  Lord 
Russell  permit  six  days  to  elapse  without  inquiring  for  the  an- 
swer to  his  reference  when  every  hour  was  pressing  for  action  ? 
Who  brought  the  papers  away  from  the  place  in  which  they 
were,  whether  the  house  of  Sir  J.  Harding,  or  the  house  of  Sir 


174 


THE   TREATY   OF  WASHINGTON. 


i  i 


^  i; 


U-J 


|l! 


or  other  Englislimen,  whose  false  representations  de- 
ceived the  British  Government,  and  involved  Great 

W.  Atherton,  if  they  ever  went  to  either?  Why  were  they  not 
sent  to  the  house  ofHir  Koundell  l*almer?  IIow  did  they  ulti- 
mately get  into  the  hands  of  hSir  "William  Atherton  and  Sir 
Koundell  Palmer? 

Now,  whatever  Sir  Koundell  Palmer  says  I  believe ;  and  hh 
declaration  shows  that  there  is  no  more  reason  to  suppose  t  le 
papers  were  sent,  either  to  Sir  J.  Harding  or  to  Sir  W.  Ather- 
ton, of  which  nothing  is  known,  than  that  they  were  sent  to 
Sir  K.  Palmer  himself,  to  whom  we  know  they  were  not  sent, 
as  he  positively  declares. 

Observe  that  Sir  K.  l*almer  takes  pains  to  commend  the  dili- 
gence, conscientiousness,  and  industry  of  Sir  W.  Atherton,  from 
which  it  is  plain  to  infer  that  he  never  received  the  papers. 
Of  course,  the  allusion  to  the  death  of  him  and  his  wife  is  as 
little  to  the  purpose  as  that  to  the  death  of  Sir  J.  Harding  and 
his  wife,  or  the  insanity  of  Sir  J.  Harding. 

Another  observation.  According  to  Sir  Koundell  Palmer's 
statement,  there  were  two  successive  references  to  the  Law 
Officers, — on  the  23d  and  the  2^ih  or  26fh.  He  implies  that 
each  of  these  references  might  have  been  communicated  to  Sir 
J.  Harding  and  to  Sir  Willi^tm  Atherton.  IFe  docs  not  speak 
of  the  insane  Sir  J.Harding  alone.,  as  Lord  Kussell  docs;  but 
is  careful  to  make  excuse  in  like  manner  for  the  sane  Sir  W.- 
Atherton.  Now,  when  he  was  called  in  for  consultation  on  the 
evening  of  the  28th,  did  it  not  occur  to  him  to  inquire  why 
these  sets  of  papers,  each  one  of  which  ought  to  have  been 
communicated  to  him  at  their  respective  dates,  were  not  so 
communicated  ?  Why  speculate  on  the  eft'ects  of  the  insanity 
of  Sir  J.  Harding  or  the  integrity  of  Sir  W.  Atherton?  Why 
not  as  well  lay  before  us  conjectural  inferences  fou..ded  on  the 
diligence  or  uprightness  of  him,  Sir  K.  Palmer  ?  Should  not  the 
suppression  of  the  papers  n,8  to  himself  have  suggested  to  him 
that  they  had  jeen  supp.-ssed  as  to  Sir  J.Harding  and  SirW. 
Atherton  ? 

We  revert  now  to  Lord  Kussell's  statement  to  Mr.  Adams, 


ALABAMA  CLAIMS. 


175 


Britain  in  this  perilous  controversy  with  the  United 
States,  have  ever  been  punished  in  any  way.     Indidt- 


that  the  delay  was  caused  bj'  the  insanity  of  Sir  J.  Harding, 
ui/tic/i,  tnade  it  necessary  to  call  in  other  parties.  What  other 
parties  ?  Why,  forsooth,  the  other  two  "  Law  Officers  of  the 
Crown "  disguised  by  Lord  Kussell  under  the  designation 
"  other  parties."  But  Sir  R.  Pahner  assures  us  that  the  pa- 
pers [if,  indeed,  they  wei  .-  sent  at  all]  must  have  been  sent 
originally  "  to  the  Law  Officers,  i.  e.,  all  three  Law  Officers." 
Lord  JIussell  therefore  had  no  more  right  to  impute  the  delay 
to  Sir  J.  Harding  than  to  Sir  W.  Atherton ;  for,  even  to  this 
day,  Sir  II.  l*almer  can  not  say  to  which  of  tlie  two,  if  to  ei- 
ther, the  delay  is  imputable.  And  yei  Lord  Russell  implies 
that  the  delay  was  occasioned  by  the  insanity  of  Sir  J.  Har- 
ding, while  neither  he  nor  Sir  R.  Palmer  ventures  to  affirm  that 
the  papers  were  ever  sent  to  Sir  J.  Harding. 

In  view  of  all  these  imperfect  and  irreconcilable  statements, 
the  presumption  remains  that  some  person  in  the  Government 
had  the  means  of  traversing  its  intention,  and  withholding 
these  papers  from  all  the  three  Law  Officers  until  the  Alaba- 
ma was  ready  to  sail.  I  do  not  say  Lord  Russell  was  that 
person ;  but  I  think  he  knows  who  it  was ;  and  if  he  desires  to 
,  'ndicate  his  honor,  of  which  he  and  the  Chief  Justice  say  so 
much,  he  will  best  do  it,  not  by  "sneers"  at  the  American 
Counsel,  but  by  disclosing  the  name  of  the  person  in  the  For- 
eign Office  who  thus  betrayed  and  dishonored  the  Govern- 
ment. 

All  questions  depending  on  this  incident  are  now  termi- 
nated. But  the  incident  itself  has  permanent  value  as  illus- 
trating the  weakness  of  the  British  Government  on  the  side 
of  its  so-called  "  Law  Officers," — that  is,  busy  members  of  tlie 
Bar,  distracted  by  their  private  practice,  but  in  whose  opin- 


ions the   Government   lives   and  moves;  who   have  "papers 
sent "  to  them  by  the  Government  in  every  great  emergency, 
without  their  being  aciual  and  ever  present  members  of  the 
Government,  like  the  "Law  Officers"  of  the  United  States. 
Here,  in  the  United  States,  as  in  the  case  of  the  Jlaw'i/,  for 


P 


ii 


'--'-^ga^Baaar   !S'±'^^i^j?^,-i'i^ 


170 


THE  TREATY   OF  WASHINGTON. 


I   ? 


ments  were,  indeed,  found  against  some  inferior  per- 
sons, but  not  against  the  responsible  authors  of  the 
loss  and  shame  which  the  Alahama  and  the  Florida 
brought  on  Great  Britain.  Traces  occasionally  appear 
in  the  journals  of  London  of  some  discontent  on  the 
part  of  tax-payers,  who  are  now  called  on  to  respond 
to  the  United  States  for  the  dishonorable  gains  of 
the  Lairds  and  the  Millers.  Expressions  of  sentiment 
in  this  respect  appear  in  the  recent  debates  in  the 
House  of  Commons.  Indeed,  if  an  account  were  taken 
of  the  injury  inflicted  on  the  British  people  by  the 
actual  losses  in  Confederate  bonds  purchased  in  (rreat 
Britain,  and  the  profits  lost  on  bonds  of  the  United 
States  not  purchased  there  and  sold  instead  in  Ger- 
many; the  losses  on  British  ships  and  cargoes  cap- 
tured in  attempting  to  run  the  blockade  of  Southern 
ports ;  the  payment  by  the  Government  to  the  United 


I 


ii' 


instance,  "  papers  are  presented  to  the  Secretary  of  State  by 
the  British  Minister  on  tlie  lltli  day  of  October,  1855,  alleg- 
ing unlawful  equipment  in  violation  of  neutrality  by  tliat  ves- 
sel;  the  papers  are  sent  to  the  Attorney-General  on  the  12th, 
and  on  the  same  day  orders  are  given  by  telegraph  to  embar- 
go the  vessel,  and  are  actually  executed  on  the  13th  at  Now 
York. 

Mr.  Fawcctt  has  not  without  reason  called  the  attention  of 
the  House  of  Commons  to  this  defect  in  the  conduct  of  the  law 
business  of  the  British  Government.  The  reply  that  the  At- 
torney or  Solicitor  General  should  be  allowed  to  continue  in 
private  business,  in  order  to  possess  competent  knowledge  for 
the  conduct  of  the  business  of  the  Government,  is  quits  pre- 
posterous; it  would  be  just  as  reasonable  to  insist  that  the 
Lord  Chancellor  or  the  Chief  Justice  of  the  Queen's  liench 
must  continue  at  the  Bar. 


lit 


*-» 


ALABAMA   CLAIMS. 


17; 


States  of  indemnity  fur  the  captures  made  by  tLe  Ala- 
/mnta,  tha  Florida^  and  the  Shenandoah;  the  rise  in 
the  cost  of  cotton  and  naval  stores,  and  the  conse- 
quent losses  to  commerce,  to  manuftictures,  and  to  la- 
bor, in  Great  Britain,  occasioned  by  the  prolongation 
of  our  Civil  War :  in  reflecting  on  all  this,  it  will  be 
perceived  that  the  hasty  issue  of  the  Queen's  Procla- 
mation, which  gave  to  the  Confederates  a  standing  in 
Great  Britain,  and  the  means  and  sj)irit  to  continue 
hostilities,  was  an  ill-advised  measure,  hardly  less  in- 
jurious to  Great  Britain  than  it  was  to  the  United 
States.  These  are  matters  which,  as  questions  of  di- 
plomacy between  the  two  Governments,  the  Treaty 
of  Washington  and  the  Award  of  the  Tribunal  close 
up ;  but  they  remain  as  historical  facts,  full  of  admoni- 
tion to  all  Governments.     Discitejaditiam  moniti. 


FILIBUSTER  OBJECTIONS. 

Do  the  Rules,  as  construed  by  the  Decision  of  the 
Treaty,  disclosfe  that  due  diligence,  voluntary  dili- 
gence, in  the  discharge  of  neutral  duties,  has  relation 
t*)  the  exigency,  and  that  the  failure  therein  is  not  ex- 
cusable by  the  insufl[iciency  of  datute  means  of  action? 
So  thought  Washington  and  Jefferson.  They  acted, 
when  no  statute  existed.  It-  avails  nothing  to  say 
that  ours  is  a  constitutional  government,  with  legal 
forms  which  impede  administrative  action.  If  Con- 
gress has  not  imparted  to  the  Executive  ade([uate 
powers, — if,  for  want  of  such  fit  legislation,  the  Exec- 
utive can  not  act  effectively  in  some  given  cases  to 
prevent  illegal  expeditions, — if,  in  consequence  there- 

M 


-  -i  t- 


ii 


m«.'  ,»< 


HI 


178 


THE  TREATY   OF   WASHINGTON. 


of,  the  subjects  of  any  friendly  State  are  injnre.tl, — if, 
in  a  word,  we  should  be  so  foolish  as  to  insist  on 
the  privilege  of  possessing  laws  designedly  imperfect, 
and  which  thus  favor  the  violation  of  law,  and  which 
are  insufficient  to  enable  the  President  to  discharge 
the  international  obligations  of  the  United  States, — 
then  it  is  proper  that  we  should  pay  for  the  enjoy- 
ment of  such  a  privilege  by  answering  to  any  friendly 
Power  for  the  injurious  consequences  of  our  self  im- 
posed impotency  to  perform  the  necessary  duties  of 
an  independent  sovereign  State. 

There  is  no  difficulty  whatever  in  the  question.  If, 
on  the  one  hand,  in  the  case  of  Avar  between  two 
other  Powers,  the  United  States  desire  and  intend  to 
be  neutral,  it  is  to  be  ho])ed  they  will  not  suffer 
themselves  to  be  misled  by  the  interests  of  some  ship- 
builders, or  the  wild  schemes  of  some  band  of  advent- 
urers, foreign  or  domestic,  or  even  by  the  sentiment 
of  sympathy  for  this  or  that  foreign  cause,  into  per- 
miLting  violations  of  the  law  of  the  land  and  of  the 
rights  of  other  States.  If,  on  the  other  hand,  the 
United  States  at  any  time  desire  or  intend  to  go  to 
war  with  some  foreign  Power,  whether  for  induce- 
ments of  sentiment  or  for  objects  of  ambition,  it  is  to 
be  hoped  they  will  manfully  say  so,  in  the  face  of  the 
world,  and  will  not  sneak  into  national  hostilities  by 
means  of  the  expeditions  or  ecjuipments  of  private; 
persons,  citizens  or  foreigners,  c(Hiducting  war  in  dis- 
guise while  the  Government  falsely  pretends  to  be  at 
peace.  All  such  "national  activities," — that  is,  acts 
ofJllibysteris?n, — Avhether  fi'audulently  encouraged  or 


ALABAMA   CLAIMS. 


179 


insufficiently  discouragtHl  by  an}^  Government,  are  in- 
deed fettered  by  tlie  three  Rules,  as  tliey  were  al- 
ready, so  far  as  morality  or  law  could  do  it,  being 
classed  by  statute  with  piracy,  perjury,  arson,  murder, 
and  otlier  kindred  "  Pleas  of  the  Crown."  True,  there 
is  tendency  of  opinion  in  the  United  States,  as  there 
is  in  Great  Britain,  to  tliink  that  all  rebellion  is  pre- 
sumpti\  ely  wrong  at  liome,  and  that  all  rebellion  is 
presumptively  right  every  where  else;  but  that  is  a 
tlieoiy  which  has  its  inconveniences.  In  a  word,  there 
is  no  possible  view  of  the  subject  in  ^vhich  Ji libit ster- 
187)1  is  not  a  crime  and  a  shame,  without  even  the 
mean  excuse  of  possible  but  dishonorable  benefits  to 
the  United  States.  At  all  times,  under  all  adminis- 
trations, private  equipments  in  our  ports,  for  the  pur- 
pose of  hostilities  against  any  country  with  which  we 
were  at  peace,  have  been  treated  as  what  they  are, 
criminal  violations  of  the  law  of  the  land  and  of  the 
law  of  nations.  Statesmen,  jurists,  and  tribunals  are 
all  of  accord  on  this  point.  Contracts  for  such  equip- 
ments are  "  so  fraught  with  illegality  and  turpitude 
as  to  be  utterly  null  and  void."  ..."  There  can  be  no 
question  of  the  guilt  and  responsibility  of  a  Govern- 
ment which  encourages  or  permits  its  private  citizens 
to  organize  and  engage  in  such  predatory  and  unlaw- 
ful expeditions  against  a  State  with  which  that  Gov- 
ernment is  at  peace."  ...  "  This  principle  is  imivers- 
ally  acknowledged  by  the  law  of  nations.  It  lies  at 
the  foundation  of  all  Government.  It  is,  however 
more  emphatically  true  in  relation  to  citizens  of  the 
United  States."    Such  was  the  doctrine  of  the  United 


)     — 


I 


:'f 


ISO 


THE   TREATY   OF  WASHINGTON. 


States  of  old:  such  is  tlieir  doctriue  now,  iieitlicr 
more  nor  less  by  reason  of  our  negotiation  with  Great 
Britain. 


!     :i' 


SALE    OF   ARMS  NOT  AFFECTED   RY   THE   TREATY   OR  THE 

AWARD. 

Some  persons  have  su])pos(.'d  that  the  Treaty  affects 
the  question  of  the  sale  of  arms  or  munitions  of  war 
to  a  Belligerent.  That  is  an  error.  Wherever,  as  l)e- 
tween  the  parties  to  the  Treaty,  the  sale  of  arms  was 
lawful  before,  it  is  lawful  now ;  wherever  it  is  unlaw- 
ful now,  it  was  unlawful  before.  That  is  a  (Question 
to  which  the  action  of  the  German  Embassador  in 
Great  Britain  during  the  late  war  between  P'rance 
and  Germany  has  drawn  the  attention  of  all  Europe, 
and  which  is  certain  to  acquire  importance  in  any 
future  great  war ;  but  it  is  not  touched,  in  fact,  by  the 
Treaty  of  Washington,  and  did  not  come  before  the 
Tribunal  of  Geneva. 


QUESTION  OF   SUPPLIES  OF  COAL. 

One  specific  ol)jection  to  the  Rules  of  the  Treaty, 
and  only  one,  of  any  apparent  force,  has  passed  under 
my  observation,  that  of  the  Austrian  statesman.  Count 
von  Beust :  the  suggestion,  namely,  as  to  the  second 
Kule,  relative  to  coaling  and  refitting  in  neutml ports, 
which,  it  is  alleged,  "  gives  to  England,  through  her 
possession  of  neutral  stations  in  all  parts  of  the  world, 
a  palpable  advantage  over  other  States,  w^hich  have 
not  the  same  facilities  at  command." 
— This  objection  is  one  of  apprehension,  ratlier  than 


ALABAMA   CLAIMS. 


Ksl 


of  fact.  When  the  United  States  and  Great  Britain 
shall,  in  conformity  "with  the  Treaty,  bi'ing  the  new 
Rules  to  the  knowledge  of  other  maritime  Powers, 
such  Powers  will  of  course  present  for  consideration 
all  pi'oper  objections  or  qualifications  to  those  Rules. 

Count  von  Beust  goes  on  to  speak  of  the  declara- 
tion made  by  Austria,  Prussia,  and  Italy  in  186G, 
w^hich  indicates  that  he  was  considering  the  subject 
in  the  relation  oi  contralcmd  vatheY  than  of  simple  re- 
titting  in  neutral  ports. 

But  the  precise  question  of  the  supply  of  coal  in 
neutral  ports  is  not  prejudged  by  the  Treaty  of 
Washington,  nor  by  the  opinions  of  the  Tril)unal  of 
Arbitration.  The  United  States  are  quite  as  much 
interested  in  having  access  to  supplies  of  coal  "at  neu- 
tral stations  in  all  parts  of  the  world  "  as  Austria,  or 
Prussia,  or  Italy ;  and  we  may  presume  that  Count 
Sclopis  did  not  fail  to  reflect  on  the  interests  of  Italy 
in  this  behalf 

One  of  the  "  Considerants  "  of  the  Award  had  for 

its  special  object  to  prevent  misconstruction  of  the 

second  Rule.     We  quote  it  as  follows : 

"In  order  to  impurl  to  any  supplies  of  coal  a  cliaracter  in- 
consistent with  the  second  Rule,  prohibiting  the  use  of  neu- 
tral ports  or  waters  as  a  base  of  naval  operations  for  a  Bellig- 
erent, it  is  necessary  that  the  said  supplies  should  be  connect- 
ed with  special  circumstances  of  time,,  of  persons,  of  place, 
which  may  combine  to  give  them  such  character." 

Count  Sclopis  explains  the  force  of  the  Decision  as 

follows: 

"  Quant  a  la  question  de  I'approvisionnement  et  du  charge- 
ment  de  charbon,je  ne  saurais  la  traiter  que  sous  le  point  de 


if 


1 


I 


11 

ikl 
ill 


1^1 


1S2 


tup:  treaty  of  Washington. 


vue  d'un  cas  conncxo  avcc  rnsacjo  d'lnio  base  (ropi'ratioiis  na- 
valcs  (lirii^ees  contre  I'lm  des  liclligoi-aiits,  on  (Vioi  e((sjf(i<jrant 
de  contrahande  do  guerre.  Je  iie  dirai  pas  (pie  le  simple  fait 
d'avoir  alloue  une  (piantite  de  charbon  plus  forte  que  celle  lu'- 
cessairo  aux  vaisseaux  jxnir  regaiijiier  le  j)ort  de  leur  pays  le  i)lus 
voisiii,  constitue  a  lui  seul  uii  i^riet'suffisaut  jx-.ur  doniiei*  lien  a 
line  iiideiniiite.  Ainsi  cpie  le  ilisait  le  C'haneclier  d'iVngleten'e, 
le  12  Juiii,  1871,  a  la  Clianibre  des  Lords,  TAugleterre  et  les 
Etats  Unis  se  ticnuent  egaleinent  attaches  au  principe  jtratique 
qu'il  n'y  a  pas  violation  du  droit  des  gens  en  fournissant  des 
arraes  aux  IJelligerants.  INIais  si  cet  excedant  de  proportion 
dans  l'ai)provisionnement  de  charbon  vient  se  joindre  a  d'autres 
circonstances  qni  marouent  qu'on  s'cn  est  servi  comnie  d'unc 
veritable  res  hoMUls^  alors  il  y  a  infraction  a  la  deuxieine  llegie 
de  I'Article  VI,  du  Traite.  C'est  dans  ce  sens  aussi  que  le  nienie 
Lord  Chancelier  expliquait  dans  le  discours  precite  la  portee 
de  la  derniere  parte  de  la  dite  Regie." 

The  same  point  is  treated  by  Mr.  Adams  as  fol- 
lows : 

"The  supply  of  coals  to  a  Belligerent  involves  no  responsi- 
bility to  the  Neutral,  when  it  is  made  in  response  to  a  demand 
presented  in  good  faith,  with  a  single  object  of  satisfying  a  le- 
gitimate purpose,  openly  assigned. 

"  On  the  other  hand,  the  same  supply  does  involve  a  respon- 
sibility if  it  shall  in  any  way  be  made  to  appear  that  the  con- 
cession was  made,  either  tacitly  or  by  agreement,  wath  a  view 
to  promote  or  complete  the  execution  of  a  hostile  act. 

"  Hence  I  perceive  no  other  way  to  determine  the  degree  of 
the  responsibility  of  a  Xeutral  in  these  cases,  than  by  an  exam- 
ination of  the  evidence  to  show  the  intent  of  the  grant  in  any 
specific  case.  Fraud  or  falsehood  in  such  a  case  poisons  every 
thing  it  touches.  Even  indiiference  may  degenerate  into  will- 
ful negligence,  and  that  will  impose  a  burden  of  proof  to  excuse 
it  before  responsibility  can  be  relieved." 


Mr.  Adams,  it  will  be  noted,  dwells  on  the  ques- 
tion of  intent  in  this  matter,  as  he  does,  indeed,  in 


si 


ALAHAMA  CLAIMS. 


183 


eacli  one  of  liis  opinions,  to  the  contrary  of  the  line 
of  reasoning  followed  by  the  British  Arbitrator. 

Finally,  in  assenting  to  the  Decision,  the  Viscount 
of  Itajubil  remarked  that,  "  with  regard  to  the  su])})ly 
of  coal,  he  is  of  opinion  that  every  Government  is 
free  to  furnish  to  the  Belligerents  more  or  less  of 
that  article." 

Thus,  the  tenor  of  the  Decision  of  the  Tribunal, 
and  the  commentaries  of  the  Ai'bitrators  thereon, 
combine  to  show  that  the  second  Rule  can  not  have 
the  effect  ascribed  to  it  by  Count  von  Beust. 

Besides  which,  the  latter  greatly  errs  in  supposing 
that  the  numerous  naval  stations  possessed  by  Great 
Britain  in  different  parts  of  the  glo])e  give  to  her  so 
much  advantage  to  the  prejudice  of  other  maritime 
Powers.  She  pays  dearly  for  such  benefits  as  she 
herself  derives  from  those  establishments,  in  the  cost 
of  maintaining  them,  whether  in  peace  or  in  war; 
and  if,  while  in  a  state  of  neutrality  herself,  she  re- 
fuses hospitality  to  others  [and  she  must  do  it  to  all, 
if  she  does  to  one],  she  forces  other  Powers  to  ac- 
quire similar  establishments  to  be  conducted  with 
equal  exclusiveuess,  or  she  is  constrained  to  incur  the 
risk  of  the  charge  of  partiality  as  betw^een  several 
Belligerents.  Hence,  it  is  not  for  the  interest  of  oth- 
er Powers  to  overstretch  the  responsibilities  of  Great 
Britain  in  this  respect;  and  it  is  for  her  interest  to 
deal  justly  and  impartially  with  such  other  Powers. 

Great  Britain  was  not  condemned  by  the  Tribunal 
because  of  the  supply  of  coals  to  Confederate  cruisers 
in  her  Colonial  ports,  nor  merely  because  those  cruis- 


Uli 


r^l 


I 


184 


THE  TREATY   OK   WASHINGTON. 


ers  were  permitted  to  pervert  the  i)rivilege  of  hospi- 
tality into  making  a  base  of  op^Tations  of  Nassau  or 
of  Melbourne.     The   recognized  fault  in  the  mattei- 
of  the  SJunamhifh  was  mainly  the  augmentation  of 
her  crew  at  Melbourne,  and  the  acklition  of  equi])- 
ments,  without  which  she  could  not  have  operated  as 
a  cruiser  in  the  North  Pacific.     In  the  case  of  the 
Alabama,  aruX  especially  that  of  the  Florida,  the 
fault  was  in  allowing  tlieni  to  come  and  go  unmolest- 
ed, and  even  favored,  in  the  Colonial  ports,  when  the 
British  Government  could  no  longer  pretend  to  be 
ignorant   of  their   originally   illegal   character,  nay, 
when  it  was  now  fully  a\\'are  of  what  Mr.  Adams 
calls  the  "continuous,  persistent,  willful,  flagrant  false- 
hood and  peijury,"  and  the  "malignant  fj-aud,"  ^vhich 
attended  the  equipment  of  the  Confederate  cruisers 
in  Great  Britain.     It  was  this  class  of  facts,  and  not 
any  such  secondary  consideration  as  the  supply  of 
coal,  which  turned  the  scale  against  Great  Britain  in 
the  opinions  of  the  Arbitrators. 

No :  neither  the  Treaty  of  Washington,  with  its 
Rules,  nor  the  Decision  of  the  Tribunal  of  Geneva, 
has  inaugurated  any  new  policy  of  neutrality  in  the 
United  States,  nor  created  for  them  any  rights  or 
any  duties  not  previously  possessed  by  and  incum- 
bent  on  the  Government. 


ti  ,1 

(J:! 


WHAT  THE  UNITED  STATES  HAVE  GAINED  BY  THE  AWAKD. 

What,  then,  it  may  be  asked,  have  the  United 
States  gained  by  the  Treaty  of  Washington,  and  by 
the  Arbitration  ? 


■'vaJUAt 


.^     f 


ALAHA.MA   CLAIMS, 


186 


We  have  gained  tlie  vi.ulieation  of  ,„„•  li^l.ts  as 
"  Government;  tl.e  mlres.s  of  the  wronij  .lo„,°to  our 
«  ..ens;  the  political  j.restige,  in  Kuroj.e  an,l  Amer- 
ica, of   l,e  enforoeniont  of  our  rights  against  the  most 
pon-orful  State   of  Christendo.n ;   th^  elevation   of' 
"wtxnns  ot  nght  ..n,l  of  jnstiee  into  the  ju<Ignu.nt.s..at 
of  the  ^^•orl,l ;  the  recognition  of  our  theorv  and  noh'- 
cy  ot  n.M.trality  by  (ireat  Britain;  the  honorable  eon- 
elusion  of  a  long-standing  controv.Tsy  and  the  e\- 
fnet.on  ot  a  cause  of  war  between  (ireat  Britain  and 
the  United  States;  and  the  moral  authority  of  hav- 
ing accomplished  these  great  objects  without  ,var  by 
peaceful  n,eans,  by  appeals  to  eonscienee  and  to  rea 

IVibl!^]"^'"         ''"^'^'■'■""'^°*  °f  '\l'isl'  international 

wi?t"T'''  *'"  ^'f  ""■''  •■""'  ''^""'•g«  of  mankind, 
V  11  utterly  cease  because  of  the  present  sucoessfu 
distance  of  uiternational  arbitration,  nobody  pretends 
Questions  of  national  ambition  or  national  resent-' 
raent,-confliets  of  dynastic  interest,-schemes  of  ter- 
ntonal  aggrandizement,-nay,  deeper  causes,  resting 
in  superabundant  population  or  other  internal  facts 
of  mahm,  misery  and  discontent,-will  continue  to 
produce  wars  to  the  end  of  time. 

.c7:f"'tro"T,  •;;;;::;•;'  'z  "•  '^  ^'?-"^ -^ronki„g  or  ti. 

mon,ln   nil!    V  '         '~    '"  S«om  nVst  point  bannie  do  oo 
monJo,  Clio  n  est  pas  remiilaci-o  pa,-  „n  tribunal  <)e  conciliT 
on  fa,sa„t  ,-cnt,-e,-  a„  fonrroau  les  CpC.s  i.npa.ionto,  Z    o" 
CO  „  est  pas  moins  „„  <;.vc.„eme„t  cava  tc-rist ,  ,o  o    1  c  , 

:i::rir::s:."^ - t,.ib,.naia.„.it,de cette s^te^^e  •::  ■ 

r-- We,  Great  Britain  and  the  United  States,  have  in  '^'^' 


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180 


THE   TREATY    OF  WASHINGTON. 


this  matter  sliown  that  even  a  (jiiestion  affecting,  or 
supposed  to  afiect,  national  honor,  may  be  settled  by 
arbitration  ;  and  if  we  have  not  effected  the  establish- 
ment of  international  arbitration  as  the  nniversal 
substitute  for  w^ar,  we  have  co-o])erated  to  })rove  by 
our  example  that  the  largest  possible  (juestions  be- 
tween contending  Governments  are  susceptible  of 
being  settled  by  peaceful  arbitration.  As  Lord  llip- 
ou  truly  says,  in  so  doing,  we  have  taken  a  great 
step  in  the  direction  of  the  dearest  of  all  earthly 
blessings,  the  blessing  of  peace. 

Let  us  hope  that  other  nations  may  f(^llow  in  our 
footsteps.  Great  Britain,  to  her  honor  be  it  said,  has 
been  true  in  this  respect  to  the  engagements  she  en- 
tered into  at  the  Conferences  of  Paris.  If  we  of  the 
British  race  are  more  capal)le  of  reasoning  in  the 
midst  of  passion  than  others,  then  ours  ])e  the  glory. 
Li  all  this,  the  saci'ifices  of  feeling  have  been  on 
the  side  of  Great  Britain.  We  owe  the  acknowledg- 
ment to  lier,  in  all  sincerity.  Standing,  as  we  now 
do,  side  by  side,  with  every  cloud  of  offense  removed 
from  between  us, — two  peoples,  as  Mr.  Gladstone  has 
well  said,  on  whom  the  seal  of  brotherhood  has  been 
stamped  by  the  hand  of  the  Almighty  himself, — we 
may  proudly  point  in  unison  to  the  homage  we  have 
both  rendered  to  the  cause  of  peace  and  humanity 
in  the  hall  of  arbitration  at  Geneva. 


i 


fj. 


MISCELLANEOUS   CLAIMS. 


187 


CHAPTER  III. 


MISCELLANEOUS  CLAIMS. 


the 
ory. 
on 
edg- 
now 
^vell 
has 
een 
we 
ave 
nity 


TllKATY   PROVISIONS. 

The  Treaty  goes  on  to  provide,  in  Articles  XII.  to 
XVII.  inclusive,  that  all  claims  on  the  part  of  corpo- 
rations, companies,  or  private  individuals,  citizens  of 
the  United  States,  upon  the  Government  of  Great 
Britain,  arising  out  of  acts  committed  against  the 
persons  or  property  of  citizens  of  the  United  States, 
during  th(^  period  between  April  13,  18G1,  and  April 
0, 1865,  inclusive,  not  being  claims  growing  out  of  the 
acts  of  the  vessels  referred  to  in  the  previous  articles 
of  the  Treaty ;  and  all  claims,  with  the  like  excep- 
tion, on  the  part  of  corporations,  companies,  or  private 
individuals,  subjects  of  Great  Britain,  uj^on  the  Gov- 
ernment of  the  United  States,  arising  out  of  acts  com- 
mitted against  the  persons  or  property  of  subjects  of 
Great  Britain  during  the  same  period,  shall  ])e  refer- 
red to  three  Commissioners  to  be  appointed,  one  by 
each  of  the  two  Governments,  and  the  third  by  the 
two  Governments  conjointly:  these  Commissioners 
to  meet  at  ^V^ashington,  there  to  hear,  examine,  and 
decide  upon  such  claims  as  may  be  presented  to  them 
by  either  Government. 

The  stipulation,  it  will  be  perceived,  does  not  cover 


^J| 


1^ 


B!    ! 


'~-, 


188 


THE   TREATY   OF   WASHINGTON. 


all  existing  claims  of  citizens  or  subjects  of  the  one 
Government  against  the  otlier,  but  only  claims  toi- 
acts  committed  against  persons  or  property  on  either 
side  between  certain  defined  dates, — ^th.it  is,  during 
the  pendency  of  actual  hostilities  in  the  United  States. 
It  is  a  provision,  supplementary  in  effect  to  the  pre- 
ceding clauses  of  the  Treaty,  conceived  in  the  appar- 
ent intention  of  thus  closing  up  ti>  ^vibjects  of  conten- 
tion growing  out  of  our  Civil  War. 

The  Commission  was  duly  organized  by  the  ap- 
pointment of  Mr.  Russell  Gurney,  Conunissioner  on 
the  part  of  Great  Britain,  and  Mr.  James  S.  Frazer, 
on  the  part  of  the  United  States,  and  of  Count  Corti, 
Envoy  Extraordinary  and  Minister  Plenipotentiary 
of  Itah ,  Commissioner  named  conjointly  by  the  two 
Governments. 

The  Treaty  contains  detailed  provisions  for  the 
prosecution  of  the  business  before  the  Commission,  to 
be  completed  within  two  years  from  the  day  of  their 
first  meeting;  and  the  contracting  parties  engage  to 
consider  the  decision  of  the  Commissioners  absolutely 
final  and  conclusive  on  each  claim  decided  by  them, 
— to  give  full  effect  to  such  decision  without  any  ob- 
jection, evasion,  or  delay  whatsoever, — and  to  consid- 
er every  claim  comprehended  within  the  jurisdiction 
of  the  Commissioners  as  fina  ly  settled,  barred,  and 
thenceforth  inadmissible,  from  and  after  the  conclu- 
sion of  the  proceedings  of  the  Connnission. 
-"  The  Commissioners  assembled  at  Washington  on 
the  26th  of  September,  1871,  and  are  assiduously  en- 
gaged in  the  determination  of  the  claims  submitted 


MLSCELLANKOUS   CLAIMS.  j^^ 

Agent  fo.  tl  e  Uiuted  States,  Mr.  Robert  S,  Hale-  ,s 
Agent  for  Great  Britain,  Mr.  Henry  Ilowar  1     with 
Mr  lames  M.  Carlisle  as  Counsel,  and  Mr.  Thou.a   C 
Cox,  beoretary  to  the  Connuission. 

tierwitMnT ''f "  "■'"  ""^'""'^tedly  complete  its  du- 
ties  within  the  time  prescribed  by  the  Treaty. 

P-ilVATE  CLAIMS   ON  GOVKHNMk.vts 

The  intimate  relation,  which  exists  between  the 
different  States  of  Christendom  at  the  p.Sln  ti ii e 
l.as  resulted  in  the  necessity  of  prov  i  ^  '  I,' 
means  for  .uljudicating  the  private  claims  of  thee  ti 

It  1  one  of  the  incidents  of  the  gradual  ten<leucv  of 
modern  nations  to  substitute  reason  for  force,  and  at 
Ditration  for  war.  ' 

The  subject  has  not  yet  obtained  from  publicists 
and  legislators  the  attention  which,  by  rea  on  of 
great  practical  importance,  and  its  iiXinsic  inter 
as  an  element  of  civilization,  it  deserves.     It  may 
well  receive  consideration  here,  both  in  itself  and  i 

T  ^w  ',  •"*'""■  ''""Senial  stipulations  of  th 

Ireaty  of  Washington. 

All  the  Powers  of  Christian  Europe  and  America 
are  of  accord,  and  stipulate  in  their  treaties  TanZ 
and  commerce,  to  permit  to  one  another's  subject's 
faee  ingress,  residence,  sojourn,  and  traffic  in  their 
.•elective  territories,  on  the  same  footing  vWtli  th 
inhab  ants  thereof,  and  with  subjection  t'o  Ih  aw 
of  the  land,  more  or  less  complete,  according  to  local      ' 


II 


J 


190 


TlIK   TliKATY    OF   WASIIIXfiTON. 


'   I 


till 


regulations  and  to  the  tenor  of  treaties.  Total  exemp- 
tion from  tlie  local  law  is  maintained  only  hy  the 
sid)jects  of  Christian  States  in  countries  outside  of 
Christendom. 

In  most  of  the  countries  of  Christendom  foreigners 
are  protected  in  their  personal  rights  ecjually  witli 
the  iidiabitants,  and,  if  wrongcid,  have  access  to  the 
tribunals  for  redress,  even  against  injuries  by  the  lo- 
cal Government  itself. 

Generally,  indeed,  it  may  be  said,  with  truth,  that 
the  rights  of  a  foreigner  are  better  protected  than 
those  of  the  inhabitants  of  the  country  itself;  for,  in 
addition  to  the  tribunals  of  the  country  w  here  he  so- 
journs, the  foreigner  has  the  benefit  of  the  IVlinister 
and  Consuls  of  his  own  country. 

0(  this  favor  the  foreigner  has  (X'casional  need,  it 
is  true;  but  it  is  a  privilege  susceptible  of  great 
abuse,  by  reason  of  the  extravagant  pretensions  occa- 
sionally made  by  persons  ^vho  may  suffer  any  real  oi' 
apparent  wrong,  and  who  are  prone  to  elevate  trivial 
grievances  into  international  questions,  to  the  annoy- 
ance of  all  Governments,  and  to  the  peril  of  the  pub- 
lic peace.  Most  of  such  subjects  of  complaint  are 
capable  of  being  settled  by  the  local  tribunals,  and 
ousjht  to  be.  The  laws  of  Home  lie  at  the  founda- 
tion  of  the  jurisprudence  of  all  Europe  and  America 
alike;  the  forms  of  judicial  administration  are  sub- 
stantially similar  in  all  the  States  of  both  Continents; 
and  in  many  of  the  cases  of  alleged  wrong  to  foreign- 
ers, and  of  call  for  diplomatic  intervention,  the  affair 
is  one  which,  if  at  home  in  his  own  country,  the  party 


MISCKLLANEOUS   CLAIMS. 


191 


il  or 

noy- 

puV)- 

are 

Liida- 

erica 
sub- 

lents; 
eicfn- 
iffair 

harty 


would  never  dream  of  ^vitlldra^^•^n2:  from  tlie  courts 
of  law  to  make  the  alleged  injury  a  subject  of  claim 
against  his  (jovernment.  And  it  would  greatly  tend 
to  the  harmony  of  States  and  the  peace  of  the  world, 
if  treaty  stipulations  were  entered  into  in  order  to  di- 
mniish  the  extent  and  restrain  the  frequency  of  such 
j)rivate  claims  on  foreign  Governments. 

In  the  present  condition  of  things,  every  (Govern- 
ment is  forced  by  private  importunity  into  b(^coming 
too  often  the  mere  attorney  of  the  claims  of  its  citi- 
z<  ns  against  foreign  Governments,  in  matters  where 
the  pai'ty  aggrieved,  if  aggrieved,  has  ample  means  of 
redress  before  the  triljunals,  and  where  his  grievance 
does  not  in  the  slicfhtest  deii:ree  affect  the  honor  of  his 
own  Government. 

These  observations  apply  especially  to  incidents 
occurring  in  times  of  peace,  in  which  times  the  acts  of 
willful  injury,  done  by  any  Government  to  foreigners 
sojourning  under  its  trcdiy  protection,  are  few  in 
number  compared  with  the  injuries  done  to  its  own 
subjects  or  citizens,  by  any,  the  best  administered 
Government  either  of  Europe  or  America.  On  such 
occasions,  the  injured  party  not  seldom  exaggerates 
his  case,  and,  by  appeals  to  the  sentiment  of  citizen- 
ship  in  his  own  country,  seeks  to  force  his  Govern- 
ment to  interpose  in  his  behalf,  so  as  to  obtain  for  him 
summary  redress  by  diplomatic  means  in  disregard 
of  the  local  law. 

Meanwhile,  in  times  of  war,  the  resident  or  sojourn- 
ing foreigner  is  still  more  solicitous  to  be  exempt  from 
those  ordinary  consequences  of  military  operations  to 


% 


;<P  I 


i: 

' 

iji 

:;   1 

I  i 


102 


TIIK   TUKATV    OF    WAS1IIN(,T()N. 


wliicli  tlie  inliahitniits  of  the  country  are  subject,  and 
liis  solicitude  is  in  proj)ortion  to  tlie  injuries  to  wLicli 
he  is  thus  exposed.  This  fact  became  cons2)icuous 
in  tlie  late  war  between  Germany  and  France,  and  led 
to  many  comj)laints  on  the  part  of  l^i'itish  subjects 
voluntarily  residing  at  the  seat  of  war,  which  con- 
strained Lord  Granville  to  disabuse  them  of  the  idea 
that  armies  in  the  field  were  to  fold  their  arms  and 
cease  to  act,  lest  l)y  chance  they  might,  in  the  heat  of 
action,  disturb  the  peace  of  mind,  or  damage  the  prop- 
erty or  person,  of  some  commorant  Englishman. 

Incidents  of  this  nature  are  most  of  all  frcMjuent  in 
times  of  civil  war,  especially  in  those  countries  of 
Spanish  America,  where  itnlitariHin  prevails,  and  the 
regular  march  of  civil  institutions  is  interrupted  l)y 
military  factious  headed  l)y  generals,  in  contention 
with  one  another,  and  with  the  constituted  authorities 
of  the  Government. 

For  injuries  thus  done  to  Its  subjects,  residing  or 
sojourning  in  a  foreign  country,  every  Government 
possesses  of  course  the  right  of  war  or  of  reprisals, 
Avhich,  in  effect,  is  the  same  thing,  being  the  adoption 
of  force  as  a  remedy  in  lieu  of  reason :  a  method  of 
redress  for  private  injuries,  which,  however  common 
formerly,  is  contrary  to  all  the  prevalent  notions  of 
international  justice  in  our  day. 

Hence,  while  it  is  the  right  and  duty  of  every  Gov- 
ernment to  interpose  on  proper  occasion,  through  its 
Ministers  or  Consuls,  or  otherwise,  on  the  happening 
of  any  injury  to  its  citizens  or  subjects  abroad,  yet 
the  recuri'ence  to  force  as  a  means  of  redress  is  admis- 


MISCELLANEOUS   CLALMS. 


198 


isals, 
htiou 
Id  of 

imon 
IS  of 

Gov- 

111  its 
[ning 

Imis- 


si])le  only  in  very  rnre  and  exceptional  cases  of  ag- 
gravated wrong  committed  by  the  authorities  of  the 
foi'ei£cn  Government. 

The  Government  aggrieved  in  the  2)erson  of  its 
siil:)ject  o])tains,  in  many  cases,  the  redress  of  the  par- 
ticular injury  by  more  or  less  earnestness  of  diplo- 
matic remonstrance. 

If,  howevei",  redress  be  delayed  for  some  sufficient 
cause  to  excuse  the  delay,  and  cases  of  alleged  injury 
are  thus  accumulated,  indemnity  fur  the  injuries  done 
will  be  procured  by  dij)lomatic  negotiation,  if  the  in- 
jured Government  be  patient  and  persistent;  for, 
much  as  thei'e  may  be  of  evil  in  the  ^vorld,  and  fre- 
quently as  nations  depart  on  occasion  from  the  rule 
of  right,  yet,  after  all,  the  sense  of  justice  among  men 
and  the  conscience  of  nations  prevail  to  such  extent 
that,  in  the  end,  in  most  cases,  mere  appeals  to  reason 
suffice  to  obtain  voluntary  reparation  at  the  hands  of 
the  injuring  Government. 

Thus,  without  war,  and  without  threat  of  war,  the 
United  States  have  obtained,  by  treaty,  payment  of 
indemnity,  for  injuries  to  citizens  of  the  United  States, 
from  other  Governments,  such  as  France,  Denmark, 
the  Two  Sicilies,  Spain,  with  provision  for  the  distri- 
bution of  such  indemnity,  among  our  citizens,  by  our- 
selves, through  the  agency  of  commissioners  appointed 
under  Act  of  Congress. 

USEFULNESS   OF   MIXED  COMMISSIONS. 

In  other  controversies  of  this  class  between  the 
United  States  and  foreign  Governments,  w^here  agree- 

N 


104 


THE   TUEATY   OK  WASHINGTON, 


£'  i 


iiient  as  to  the  luiture  of  the  injury  or  amount  of 
the  indemnity  could  not  be  arrived  at,  mixed  commis- 
sions have  been  established  by  treaty  in  numerous  in- 
stances, to  judge  and  decide  the  (questions  at  issue  be- 
tv/een  the  two  contendiuGf  (joveniuients. 

On  three  Several  occasions,  within  a  brief  period, 
the  United  States  and  (Ireat  Britain  have  had  re- 
course to  the  international  triljunal  of  a  mixed  com- 
mission for  settlement  of  unliquidated  claims  of  citi- 
zens or  subjects  of  one  country  against  the  Govern- 
ment of  the  other,  namely,  ])y  the  Treaty  of  July  2G, 
1858;  by  that  of  July  1,18(38;  and  by  the  present 
Treaty  of  Washington.  Other  examples  of  this  occur 
in  our  earlier  history.  And  the  United  States  have 
had  treaties  of  a  similar  character  with  the  Mexican 
Republic,  with  the  Republic  of  Ne^v  Granada,  with 
that  of  the  United  States  of  Colombia,  and  Avitli  the 
Republics  of  Costa  Rica,  Venezuela,  and  Peru. 

An  eminent  French  publicist,  M.  Pradier  Fodere, 
observes: 

"  L' arbitrage,  tres-usite  dans  le  moy en-age,  a  ete 
presque  entierement  neglige  dans  les  temps  modernes; 
les  exemples  d' arbitrage  ofterts  et  acceptes  sont  deve- 
nus  de  plus  en  plus  rares,  par  Texperience  des  incou- 
venients  qui  semblent  etre  presque  inseparables  de  ce 
moyen,  ordinairement  insuffisant  par  le  defaut  d'un 
pouvoir  sanctionnateur.  Lorsque  les  grandes  puissan- 
ces constituent  un  tribunal  arbitral,  ce  n'est  ordinaire- 
ment que  pour  des  objets  d'interet  secondaire." 

As  to  the  absence  of  any  power  to  compel  observ- 
ance of  the  award  of  an  international  tribunal,  it  may 


MISCKLLAN'KOUS  CLALMS. 


UK) 


siilHct*  to  say  tliat  tlie  "pouvoir  sanctioniiateur"  is  in 
the  treaty  of  arljitration,  which  nations  are  quite  as 
likely  to  observe  as  they  are  to  o})serve  any  other 
treaty.  It  is  that  question  of  good  faith  among  na- 
tions upon  which  the  peace  of  the  we  Id  stnnds. 

Undoubtedly,  cases  occur  in  which  the  internation- 
al discord  or  debate  turns  on  (questions  where  the  na- 
tional honor  or  dignity  is  directly  in  |)lay,  and  where 
the  controversy  becomes  a  matter  of  personal  senti- 
ment; and  in  such  cases  it  may  not  be  easy  to  ob- 
tain an  agreement  to  arljitrate.  Such,  indeed,  was  the 
view  of  Earl  Russell,  as  we  have  already  seen,  with 
reference  to  the  imputed  want  of  due  diligence  of  the 
British  Government  in  the  matter  of  the  Alaharna 
and  the  Florida.  But  the  influence  of  time,  which 
softens  sensibilities  and  resentments,  and  the  preva- 
lence at  length  of  the  mutual  desire  of  peace,  may 
overcome  even  the  most  serious  apparent  obstacles 
to  friendly  arbitration,  as  the  conduct  of  Great  Brit- 
ain in  expressing  her  regret  for  the  incidents  of  which 
the  United  States  complained,  and  in  referring  the 
whole  subject  to  the  Tribunal  at  Geneva,  seems  to 
demonstrate. 


OTHER  FORMS  OF  ARBITRATION. 

Many  instances  have  occurred  in  the  present  centu- 
ry of  another  form  of  arbitration,  differing  materially 
from  mixed  commissions,  namely,  submission  to  a  sin- 
gle arbiter  or  tribunal,  with  complete  authority  to 
decide  the  subject  of  controversy. 

Thus,  in  1851,  France  and  Spain  referred  to  the  ar- 


; 


r   . 


' '  I 


jij 
i  t 


i  1 


J 


*! 


1 


190 


Till-:    lltKATY    (Jl-'   WAblllXCiTUN. 


bitration  of  tlioKing  of  the  Xotlu'i'laiids  the  (juestion 
of  responsibility  for  certain  i)ri/es,  an  incident  of  tlie 
intei'veiitioii  of  France  in  the  atfaiis  of  8])ain  in  the 
tnue  of  Fei'dinand  \'II.  In  18t37,  Great  Bri  ain  ,'uid 
the  United  States  I'ciferred  a  (juestion  of  Ijounuary  to 
the  King  of  the  Netherhmds.  In  18415,  Fi'ance  and 
EngLaiid  submitted  a  question  of  indenuiities  claimed 
by  British  subjects  to  the  King  of  Prussia.  In  1844, 
France  and  Mexico  submitted  a  similar  question  to 
the  Queen  of  Great  J^ritain.  In  1852,  the  United 
States  and  Portugal  submitted  to  the  Emperor  of  the 
French  the  question  of  the  responsiljility  of  Portugal 
for  the  destructiou  of  an  American  letter-of-nuu'(jue 
by  the  English  in  the  port  of  Fayal.  In  1858,  the 
United  States  and  Chile  submitted  a  (piestion  of  j)i'i- 
vate  loss  to  the  decision  of  the  Kinij:  of  the  Belmans. 
In  18<j2,  a  difference  between  some  Enc^lish  officers 
and  local  Brazilian  authorities  was  submitted  to  the 
ai'bitration  of  the  King  of  the  Belgians  by  Great 
Britain  and  Brazil.  In  1807,  Great  Britain  and  Port- 
ugal suT)mitted  a  question  of  territory  to  the  decision 
of  the  United  States.  In  1870,  Brazil  and  the  United 
States  referred  a  ([uestion  of  damages  to  the  decision 
of  Sir  Edward  Thornton,  the  British  Minister.  In 
1864,  Great  Britain  and  Peru  submitted  a  question 
of  private  claims  to  the  judgment  of  the  Senate  of 
the  free  city  of  Hamburg. 

We  shall  presently  have  to  speak  of  a  fact  of  the 
same  class  in  the  question  referred  by  Great  Britain 
and  the  United  States  to  the  Emperor  of  Germany 
by  the  Treaty  of  Washington. 


i 


■i^iiiife. 


MISCELLAN  KOUS   CL  A I  MS. 


lit: 


One  of  tlie  eai'licst  of  our  conventions  of  this  nuture 
WHS  contained  in  the  Treaty  of  1818,  in  execution  of 
an  articK;  of  the  Treaty  of  (Jlient  |  islf)],  l»y  whicli 
the  United  States  and  (treat  JJritain  sti])uhitod  to  re- 
fer a  certain  (question  of  indemnities  to  some  friend- 
ly Sovereign  or  State.  Afterward  the  Kmperor  of 
Russia  was  selected  as  such  arbitrator,  and  rendered 
an  award  against  (treat  Britain,  in  general  terms,  })y 
reason  of  which  it  became  necessary  to  provide  by  a 
second  treaty  [1822]  for  the  appointment  of  a  com- 
m  sioner  and  arbitrator  on  the  i)art  of  the  United 
Sti'tes,  and  a  commissioner  and  arbitrator  on  the  j)art 
of  Great  Britain,  to  assemble  at  Washington  and  as- 
sess damages  under  the  inni)irage  of  the  IMinister  of 
the  UK'diating  Power  acf  dited  to  the  United  States. 
This  example  is  cui'iou.  .d  instructive,  seeing  that 
the  debtor  Government,  so  to  speak, — Great  Britain,-  - 
in  order  to  give  effect  to  its  engagement  at  Ghent 
entered  into  three  successive  international  compacts 
with  the  United  States, — one  to  appoint  an  arbiter, 
another  to  name  him,  and  a  third  to  give  eli'ect  to  his 
award.  There  could  be  no  better  illustration  of  the 
moral  force  of  treaties  of  arbitration  in  the  estimation 
of  modern  States. 


i 
- 


TENDENCY  OF  REASON  AND  JUSTICE  TO  PREVAIL  OVER 

FORCE. 

'^hese  many  examples,  it  seems  to  me,  tend  to  man- 
ifest the  increasing  desire  of  modern  nations  to  ter- 
minate all  their  controversies,  if  possible,  by  friendly 
means  rather  than  by  force.     Where  they  can  not 


N 


198 


THE  TREATY   OF  WASHINGTON. 


agree  between  tliemselves,  they  establish  a  mixed 
commission  or  appoint  an  arbitrator  or  arbitrators. 
On  such  occasions  the  contending  parties  do  not  se- 
lect an  arbitrator  in  consideration  of  his  being  power- 
ful, like  an  Emperor  of  the  French  or  an  Emperor  of 
Germany,  but  because  of  confidence  in  the  impartial- 
ity of  the  arbiter,  as  when  great  States  refer  a  ques- 
tion to  relatively  feeble  Sovereigns,  like  the  King  of 
the  Netherlands  or  the  King  of  the  Belgians,  or  to 
the  Senate  of  a  little  Republic  like  Hambui'g,  or  even 
to  five  individual  judges,  like  the  Ai'bitrators  of  Ge- 
neva, or  to  a  single  person  like  Sir  Edward  Thorntor. 
Nay,  in  further  proof  of  the  availableness  of  this 
method  of  settling  national  disputes,  we  have  Great 
Britain  and  the  United  States,  in  spite  of  their  own 
particular  quarrel,  each  trusting  the  other  in  a  ques- 
tion between  either  of  them  and  another  Power. 

The  same  disposition  of  mind  on  the  part  of  mod- 
ern Governments,  that  is,  the  assumption  that  a  se- 
lected international  judge  or  arbitrator  will  decide 
impartially,  whether  he  be  powerful  or  w^eak,  and  of 
whatever  nationality  he  may  be,  appears  in  the  con- 
stitution of  mixed  commissions.  Generally  these 
commissions  consist  of  two  commissioners,  one  ap- 
pointed by  each  of  the  res2:)ective  Governments,  with 
authority  given  to  the  commissioners  to  select  an  um- 
pire to  determine  any  differences  vrhich  may  arise  be- 
tween them;  or  sometimes  the  umpire  is  agreed  on 
by  the  two  Governments. 

Now,  in  the  very  heat  of  our  late  controversies  with 
Great  Britain,  we  consented  to  accept  the  British 


, 


MISCELLANEOUS  CLAIMS. 


199 


Minister,  Sir  Frederic  Bruce,  as  umpire  between  us 
and  the  United  States  of  Colombia.  And  at  the  same 
period  of  time.  Great  Britain  accepted  Mr.  B.  R.  Curtis, 
of  Massachusetts,  as  umpire  under  the  Treaty  for  set- 
tling the  claims  of  the  Hudson's  Bay  Comi)aiiy  against 
the  United  States.  And  in  this  case,  be  it  remember- 
ed, the  Commissioners,  just  men  both.  Sir  John  Rose 
and  Mr.  Alexander  S.  Johnson,  agreed  on  their  award 
without  troubling  Mr.  Curtis. 

Under  the  previous  cld'ns'  Treaty  between  Great 
Britain  and  the  United  States,  the  two  Governments 
in  the  first  instance  agreed  on  ex-President  Van  Buren 
as  umpire,  and,  on  his  declining,  they  chose  Mr.  Bates, 
an  American  Banker  residinc:  in  London. 

Under  the  claims' Treaty  between  the  United  States 
and  New  Granada,  an  American,  Mr.  Upham,  of  New 
Hampshire,  was  umpire ;  and  another  American,  Dr. 
Francis  Lieber,  of  New  York,  under  the  recent  Treaty 
between  the  United  States  and  the  Mexican  Republic. 
Strongest  of  all  is  the  case  of  the  Treaty  between 
Paraguay  and  the  United  States,  which  submitted 
their  controversy  to  an  American  citizen,  Mr.  Cave 
Johnson,  of  Tennessee,  as  sole  arbiter,  and  he  decided 
against  the  United  States. 

Is  it  possible  to  misapprehend  the  moral  of  such 
facts  ?  In  all  these  various  aspects  of  the  subject,  do 
we  not  perceive  the  sense  of  justice  tending  every 
day  to  penetrate  deeper  and  deeper  into  the  councils 
of  nations,  and  the  voice  of  reason,  of  which  interna- 
tional laio  is  the  expression,  influencing  more  and 
more  the  action  of  Governmepts  ? 


■■I 


f 


. 


200 


THE   TREATY   UF   WASHINGTON. 


THEORY   OF  ARBITRATION. 

Sovereign  States,  it  Las  been  said,  sliould  be  trust- 
ed to  do  justice  spontaneously,  and  without  humbling 
themselves  to  be  judged  by  an  arbitrator.  It  might 
with  just  as  good  reason  be  said  that  all  men  should 
be  trusted  to  do  justice  spontaneously,  and  without 
humbling  themselves  to  be  judged  by  a  trilninal. 
The  experience  of  mankind  contradicts  each  of  these 
propositions.  Diverse  views  of  the  facts,  and  of  the 
rules  of  right  applicable  to  the  facts,  to  say  nothing 
of  j^rt^udice,  passion,  pride  of  opinion,  are  inseparable 
from  human  affairs,  because  they  are  conditions  of 
the  human  mind,  influencing  the  actions  as  w^ell  of 
men  in  political  society  as  of  individual  men.  Ad- 
mit that  in  a  majority  of  cases  reason  will  prevail  to 
prevent  or  to  settle  controversies  between  individual 
persons ;  but  reason  does  not  suffice  in  all  cases,  and 
it  is  for  such  exceptional  cases  that  tribunals  of  jus- 
tice exist,  without  which,  in  the  attempt  of  men  to 
right  themselves,  society  would  be  dissolved  into  a 
state  of  anarchy  and  bloodshed.  The  considerations 
which  recommend  the  establishment  of  tribunals  hav- 
ing authority  as  such  within  the  limits  of  each  sov- 
ereign State,  are  still  more  cogent  when  applied  to 
sovereign  States  themselves,  which,  having  no  com- 
mon superior,  must  of  necessity  determine  their  dif- 
ferences by  war,  unless  they  accept  the  mediation  of 
some  friendly  Power  to  restore  concord  between  them, 
or  unless  they  recur  to  arbitration,  by  mutual  consent, 
in  one  form  or  another  according  to  circumstances,  as 


MISCELLANEOUS   CLALMS. 


201 


the  Jnited  States  and  Great  Britain  Lave  done  }>y  the 
Treaty  of  Washington. 

So  many  examples  of  arbitration  bet^veen  Govern- 
ments, within  a  recent  period,  contribute  to  prove  that 
M.  Pradier  Fodei-e  errs  in  assuming  that  in  our  day 
"  offers  of  arbitration  made  and  accepted  are  becoming 
more  and  more  rare."  On  the  contrary,  this  method 
of  terminating  national  differences  may  now  be  re- 
garded as  permanently  fixed  in  the  international  juris- 
prudence of  Europe  and  America. 

WISDOM  OF  THE   PRESENT  MIXED  COMMISSION. 

I  conclude,  therefore,  that  the  United  States  act- 
ed wisely  in  submitting  the  claims  of  British  sub- 
jects  to    a   mixed   commission   by  the   Treaty    of 
Washington. 

Some  persons  in  the  United  States,  with  disposi- 
tion to  criticise  the  Treaty  of  Washington,  have  sug- 
^gested  that  this  Commission  may  result  in  finding !a 
large  balance  of  many  millions  due  from  the  United 
States  to  Great  Britain. 

I  think  the  supposition  is  altogether  gratuitous, 
and  that  no  such  considerable  balance  will  be  found 
to  be  due.  If  it  should  be  so,  however,  the  fact  will 
m  no  sort  detract  from  the  credit  belonging  to  the 
Treaty.  If  the  Government  of  the  United  States,  in 
the  course  of  its  efforts  to  suppress  insurrection,  shall 
have  done  injury  to  the  subjects  of  Great  Britain  for 
which  we  are  justly  responsible  by  the  law  of  nations, 
It  IS  altogether  proper  that  we  should  pay  whatever 
indemnity  therefor  may  be  found  due  by  the  judg- 


if      'I 

i 


'!! 


II 


f  t  § 


202 


THE   TREATY   OF  WASHINGTON. 


ment  of  a  lawfully  constituted  international  tribunal, 
such  as  tLe  present  Commission. 

Citizens  of  the  United  States  are  not  slow  to  in- 
voke the  intervention  of  their  G  overnment  in  behalf 
of  any  American  injured  in  the  progress  of  civil  war 
in  other  countries,  and  on  such  occasions  to  talk  loud- 
ly of  "  outmges  to  citizens :"  let  us  do  as  we  would 
be  done  by,  and  concede  that  Great  Britain  is  entitled 
to  judicial  examination  of  the  cases  of  her  subjects 
alleging  injury  by  the  occurrences  of  civil  war  in  the 
United  States. 


y 


#r 


i^ 


I 


J 


THE  XUimiWESTERN  BOUNDARY- LINE. 


203 


OHAPTER  IV. 
THE  NORTHWESTERN  BOUNDARY- LINE. 

PROVISIONS  OF   THE   TREATY. 

The  Articles  of  the  Treaty  from  XXXIV.  to  XLII. 
inclusive  dispose  of  the  long-standing  dispute  be- 
tween the  United  States  and  Great  Britain  regarding 
the  true  water-line  by  which  the  Territory  oi'  Wash- 
ington is  separated  from  Vancouver's  Island. 

The  subject  of  the  controversy,  and  the  agreement 
for  its  termination,  are  set  forth  as  follows: 

"Whereas  it  was  stipulated  by  Article  I.  of  the  treaty  con- 
cluded at  Washington  on  the  15th  of  June,  1846,  between  the 
United  States  and  Her  Britannic  Majesty,  that  the  line  of 
boundary  between  the  territories  of  the  United  States  and  those 
of  Her  Britannic  Majesty,  from  the  point  on  the  forty-ninth 
parallel  of  north  latitude  u])  to  which  it  had  already  been  as- 
certained, should  be  continued  westward  along  the  said  paral- 
lel of  north  latitude  '  to  the  middle  of  the  channel  which  sepa- 
rates the  continent  from  Vancouver's  Island,  and  thence  south- 
erly, through  the  middle  of  the  said  channel  and  ofFuca  Straits 
to  the  Pacific  Ocean  ;'  and  whereas  the  Commissioners  appoint- 
ed by  the  high  contracting  Parties  to  determine  that  portion 
of  the  boundary  which  runs  southerly  through  the  middle  of 
the  channel  aforesaid,  were  unable  to  agree  upon  the  same  • 
and  whereas  the  Government  of  Her  Britannic  Majesty  claims 
that  such  boundary-line  should,  under  the  terms  of  the  treaty 
above  recited,  be  run  through  the  Rosario  Straits,  and  the  Gov- 
ernment of  the  United  States  claims  that  it  should  be  run 
through  the  Canal  de  Haro,  it  is  agreed  that  the  respective 


I 


204 


TIIK   TREATY   OF   WASHINGTON. 


I 

Ill     ! 


claims  of  tlic  Oovornmetit  of  tlio  Ignited  States  and  of  the  Oov- 
ertiuiciit  of  Her  liritaiiiiic  Maiestv  shall  be  submitted  to  the 
arbitration  and  aNvard  (pf  His  .Majesty  the  Kmperor  of  (Germany, 
who,  having  regard  to  the  above-mentioned  Article  of  the  said 
Treaty,  sliall  decide  tiiereupon,  tinaHy  and  Avithout  apj)eal, 
which  of  those  claims  is  most  in  accordance  with  the  true  in- 
terpretation of  the  Treaty  of  June  15, 1840." 

Subsequent  ai'ticles  prescril)e  that  the  question 
shall  be  discussed  at  Berlin  by  the  actual  di])luiuatic' 
Representatives  of  the  respective  (Tovernments,  either 
orally  or  by  written  argument,  as  and  when  the  Arbi- 
trator shall  see  fit,  either  before  the  Arbitrator  him- 
self, or  before  a  person  or  persons  named  by  him  for 
that  purpose,  and  either  in  the  presence  or  the  absence 
of  either  or  both  Agents. 

A  previous  arrangement  in  a  treaty  negotiated  by 
the  Earl  of  Clarendon  and  Mr.  Johnson  for  referrini]^ 
the  subject  to  the  arbitration  of  the  President  of  the 
Swiss  Confederation  had  been  rejected  by  the  Senate 
of  the  United  States,  not  on  account  of  any  objection 
to  the  particular  arbitrator,  but  for  other  considera- 
tions. 

There  is  p:ood  cause  for  the  suggestion  of  Lord  Mil- 


o 


ton  that  the  Senate  of  the  United  States  considei'ed 
our  "  right  to  the  disputed  territory  so  extremely  clear 
that  it  ought  not  to  be  submitted  to  arbitration."" 
That,  indeed,  is  the  tenor  of  Senator  Howard's  speech 
on  the  subject,  the  publication  of  which  was  author- 
ized by  the  Senate.  Such  a  view  of  a  question  of 
right  may  be  admissible  on  the  part  of  a  private  in- 
dividual, who,  in  a  clear  case,  may  prefer  a  suit  at  law 
in  the  courts  of  his  coimtry  to  arbitration ;  but  it  is 


THE   NUKTIIWESTEUN   BUUXDAKY  -  LINE. 


205 


wholly  iija])|)licable  to  iiations,  wliicli,  if  tliey  can  not 
agree  and  Avill  not   aibitrate,  have  no   resource  left 


8a  ve  war. 


But  this  was  not  the  only  consideration  which  in- 
duced the  Senate  to  refuse  its  assent  to  that  treaty. 
There  were  objections  to  thefortn  of  submission. 


IIISTOitY    OF  THE   QUESTION. 

The  controversy  to  which  these  treaties  refer  is  one 
of  the  leavinsT^s  of  the  last  war  between  the  United 
States  and  Great  Britain,  and  has  its  roots  far  back  in 
the  circumstances  of  the  primitive  colonization  of 
North  America  by  Eui'opeans. 

When  the  Kings  of  the  little  island  of  Britain,  in 
virtue  of  some  of  their  subjects  having  coasted  along 
a  part  of  the  Atlantic  shores  of  America,  assumed  to 
concede  to  the  Colonies  of  Massachusetts  and  Virginia 
grants  of  territory  extending  by  p.irallels  of  latitude 
westward  to  the  Pacific  Ocean,  and  covering  the  un- 
explored immensity  of  the  Continent,  and  on  the  prem- 
ises of  sovereignty  and  jurisdiction  as  good  as  their 
title  to  the  manor  of  East  Greenwich  in  Kent, — it 
was  only  men's  universal  ignorance  of  geography 
which  saved  the  act  from  the  imputation  of  wild  ex- 
travagance. 

But  such  grants,  and  the  pretensions  on  which  they 
were  founded,  were  the  logical  consequence  of  the 
theories  of  colonization  and  conquest  pursued  in  the 
New  World  by  Spain,  Portugal,  and  France,  as  well 
as  England,  and  formed  the  basis  of  the  power  of 
Great  Britain  in  North  America,  and  eventually  of 


ii 


'IT 


200 


THE  THKATV   OV  WASHINGTON. 


tluit  of  the  United  States.  It  was  tlie  assiiiii])t\oii 
tliat  discovery  by  any  Europ»nxn  State,  followed  ]>} 
occnpation  on  tlie  sea-coast,  caiTied  the  possessions 
of  such  State  indefinitely  landward  until  they  met 
the  possessions  of  some  otliev  European  State. 

At  the  same  tirnt,  France  had  entered  into  Amei'ica 
by  the  waters  of  the  St.  Lawrence,  had  ascended  that 
river  to  the  Lakes,  had  then  descended  by  the  Missis- 
si]  )|)i  to  the  site  of  the  future  New  Orleans,  and  had 
thus  laid  the  foundation  of  a  title  not  only  td  the  ex- 
j)lore(\  territories  watered  by  the  St.  La\\'rence  or  in 
front  of  it  on  the  sea-coast,  but  also  to  undefined,  be- 
cause unknown,  regions  beyond  the  Mississippi. 

Hence  arose  the  first  great  questions  of  boundary 
in  North  America,  those  between  England,  France, 
and  Spain,  which  were  settled  by  the  Peace  of  Utrecht. 
France  retained  possession  of  the  territories  on  the 
St.  La^vrence  and  the  Mississippi ;  whilst  England 
retained  her  country  of  Hudson's  Bay  and  her  Prov- 
inces on  the  Atlantic  coast,  and  accpiired  Nova  Scotia 
and  Newfoundland.  [Treat}'  of  Utrecht,  March  31- 
Aprilll,lVi;i.l 

Subsequently,  the  fortunes  of  war  made  England 
mistress  of  the  Canadian  and  coast  establishments  of 
France,  leaving  to  the  latter  only  the  territory  beyond 
the  Mississippi.  [Treaty  of  Fontainebleau,  Nov.  ;3, 
17G2,  and  Treaty  of  Paris,  Feb.  10, 17G3. ] 

Meanwhile,  Spain  continued,  with  but  brief  inter- 
ruption, in  undisputed  sovereignty  of  the  two  Floridas, 
and  of  the  vast  provinces  of  New  Spain,  of  undefined 
extension  west  and  north  toward  the  Pacific. 


rilE    NOKTHWKSTKKX    nolNDAliV  -  LINK. 


L>(i: 


of 
)nd 

:ei'- 
las, 
led 


Tims,  wlu-n  the  Tliirtoeii  Colonies  ()l)t!iine<l  iiide- 
pendeiice,  aiKi  tre.'ited  tor  tlie  juirtition  between  tlieni 
and  (treat  J^ritai'i  o^'  the  J^ritish  enipin;  in  America, 
each  took  the  ])art  of  wlilch  they  respectively  li<'hl 
constructive  jurii^liction,  according  to  its  recogniz(;d 
limits  in  time  of  peace, — that  is  to  say.  Great  I^ritain 
retained  for  herself  the  territovles  which  slie  had  con- 
quered from  France,  and  relinipiished  to  the  Tiiirteen 
Colonies  all  the  ter^'itory  which  she  had  theretofore 
claimed  as  hers  against  France  ])y  title  of  colonization 
and  possession. 

The  new  Republic  thus  Ijecame  the  sovereign  of  a 
ni.agnificent  territory  regarded  in  the  comparison  with 
Furopean  standards  of  magnitude,  and  also  of  intrin- 
sic value  and  resources  unsurpassed  by  the  posses- 
sions of  any  European  State. 

But,  even  with  such  limits,  we  felt  cribbed  and  con- 
fined from  the  first :  for  the  statesmen  of  the  United 
States  had  clear  perception  not  only  of  what  we  pos- 
sessed as  territoiy,  Init  also  of  what  we  needed  to 
possess  in  order  to  be  a  first-rate  Power  in  America. 

We  found  ourselves  blocked  in  on  the  North  by 
the  British  possessions,  which  also  overshadow^ed  us 
on  the  East,  and  which  were  at  that  time  of  sufiicient 
relative  strength  to  constitute  an  object  of  solicitude 
to  us  so  long  as  they  remained  in  the  hands  of  Great 
Britain. 

Westward,  w^e  were  hemmed  in  along  the  Missis- 
sippi by  the  French,  who  also  held  the  mouths  of 
that  river,  and  barred  us  from  access  to  the  sea  in 
that  direction. 


I    i 


iiOS 


THE   TUKATY   OF  WASHINGTON. 


Oil  the  South,  S})ain  shut  us  u])  on  the  side  of  tlie 
(rulf  of  Mexico. 

It  was  impossible  in  this  ytate  of  things  that  the 
United  States  could  attain  the  development  to  Avhich, 
in  other  resjx'cts,  they  had  the  right  to  aspire,  by  rea- 
son of  the  fertility  of  their  soil,  their  numerous  rivers, 
and  their  commanding  position  in  the  temj^erate  zone 
of  America. 

But  the  cession  of  Louisiana  to  the  United  States 
l)y  the  voluntary  act  of  France, — the  most  splendid 
concession  ever  made  by  one  nation  to  another,  -pro- 
duced a  revolution  in  the  condition  of  America.  We 
thus  acquired  territory  of  indefinite  limits  westward, 
with  such  limits  on  the  south  as  the  pretensions  of 
Spain  w^ould  allow,  and  with  limits  north  only  where 
superior  claim  of  right  on  the  part  of  Great  Britain 
intervened,  namely,  the  parallel  of  forty-nine  degrees 
established  between  Fi'ance  and  Great  Britain  by  the 
Treaty  of  Utrecht. 

President  Jefferson  lost  no  time  in  asserting  the 
rights  of  the  United  States  in  the  inter'or  of  the 
Union,  and  at  the  same  time  acquiring  knowledge  of 
the  country  by  means  of  the  celebrated  expedition  of 
Le\vis  and  Clark.  Theretofore  the  only  knowledge 
we  possessed  of  the  great  chain  of  the  Rocky  Mount- 
ains, and  of  the  country  or  even  the  name  of  the  coun- 
try of  Oregon  beyond,  was  founded  on  the  narration 
of  Jonathan  Carver,  or  other  information  derived 
from  the  Indians. 

We  were  thus  enabled  to  comprehend  the  relation 
of  Louisiana  to  the  shores  of  the  Pacific,  and  to  see 


TlIK    N(IKTJnV|.:,ST|.;U.N    H()UNI)AIiY-l.IN,.:.  2^,, 

u  t  G  ay  ot  ho  A,„,.nea„  .shij,  6W„»A/„,  of  Jfoston, 
m  I  <  J.l  and  named  by  bin,,  and  afterward  by  the 
J<^ngl,sh  avj,  orer,  Captain  Vancouver,  waH  "tl,e,.reat 
■■iver  of  the  West,"  the  Oregon  of  Carver. 

o.  less  ot  diligence  by  Spanish  navigators,  fitted  out 
by  the  Viceroys  of  New  Spain,  who  gave  to  many  of 
the  islands  straits,  and  cliannels  the  names  they  still 
retain ;  and  Spain,  if  any  Power  anterior  to  the  Unit- 
'f  States,  had  title  by  discovery  in  those  parts  of 
America.  ^ 

But  the  earliest  settlement  on  that  coast  was  the 
factory  of  Astoria  at  the  mouth  of  the  Kiver  Colum- 
bia,  established  by  John  Jacob  Astor. 

Then  came  the  war  between  the  United  States  and 
Great  Britain :  the  first  effect  of  which,  as  to  the  pres- 
ent  question,  was  the  military  occupation  of  Astoria 
and  of  the  country  on  the  banks  of  the  Columbia  by 
British  forces:  subsequently  to  which, on  the  conclu 
sion  of  peace,  although  Astoria  was  surrendered  to  us 
in  obedience  to  the  stipulations  of  the  Treaty  of  Ghent 
yet  Great  Britain  set  up  claim  to  the  valley  of  the' 
Columbia  as  againsf  the  United  States,  and,  indeed 
to  alUhe  country  intervening  between  the  actual  oc-' 
cupations  of  Spain  to  the  south  in  California,  and  those 
ot  Kussia  to  the  north  in  Sitka. 

Claims  of  Great  Britain  in  this  quarter,  with  but 
weak  foundation,  had  already  been  asserted  against 
Spam  to  the  south  of  the  River  Columbia 

Controversy  on  the  subject  between  the  United 

O 


I: 


■( 


210 


TIIK   Tin-.ATY   OK   WASIIINCJTON. 


States  and  Oreat  Britain  was  suspended  by  tlie  Treaty 
of  October  20,  ISls.  I^y  iLnt  tn-aty  it  was  stipula- 
ted that  from  the  Lake  of  the  "Woods  to  tlie  "  Stony 
Mountains,"  the  line  of  deniarkation  between  the  pos- 
sessions of  the  two  countries  in  America  should  be 
the  forty-ninth  i)arallel  of  latitude  westward  to  the 
Stony  Mountains. 

The  United  States  mii^ht  well  have  insisted  on  pro- 
ceding  due  west  tVoni  the  most  northwestern  ])oint 
ot  the  Lake  of  the  Woods,  the  tei-minal  ])()int  in  that 
direction  of  the  Treaty  of  Lidependence,  \N'liich  is 
nearer  the  parallel  of  r)0°;  but,  in  early  unsuccessful 
negotiations  on  this  subject  under  President  Jefferson, 
we  had  agreed  to  adopt  the  4^  Ji  parallel,  and  that 
agreement  was  renewed  by  the  Treaty  of  1818,  in  obe- 
dience to  the  assumption  that  this  line  had  been  es- 
tablished by  the  Treaty  of  Utrecht  * 

*  The  "Treaty  of  Peace  and  iVniity""  between  France  and 
England  contains  the  following  provision  [Art.  X.]: 

"(^uant  aux  liinites  entre  la  Haie  de  Hudson  et  Ics  lienx  aj»- 
partenans  a  la  France,  on  est  convenu  reciproquenient  qu'il 
sera  nomnie  incessamment  des  Conimissaires,  qui  les   deter- 


raineront  dans  le  ternie  d\in  an 


les  memes  Conimissaires 


auront  le  pouvoir  de  regler  ]»areillement  les  liniites  entre  les 
autres  colonies  Franyaises  et  liritanniques  dans  ce  pays-la." — 
Dumont,  t.  viii.,  pt.  1 ,  p.  332-338. 

Mr.  Bancroft,  misled  by  Mr,  Greenhow,  says  of  this  arti- 
cle: 

"  On  the  Gulf  of  Mexico,  it  is  certain  that  France  claimed  to 
the  Del  Norte.  At  the  northwest,  where  its  collision  would 
have  been  with  the  possessions  of  the  Company  of  Hudson's 
Bay,  no  treaty,  no  coramlision,  appears  to  have  fixed  its  lim- 
its."— Bancroft's  History,  vol.  iii.,p.  343. 


■'"'•  ^""•■■""•,.:sr,,„x  ,„„;x„.„n-.LiNK.  ajj 

t'.ee::;:;;"Sj:n;t:;,:T,^;::;r 

«t.>ny  Mountains,  n-ith  it      •  ■•  k'm!^1  •'";''  "*  "''' 

noJalL't'-r*'"'''"'  "*'  *''■   Uoited  States  received 
^!^:^eL!!!^^"'«"t  tl„.o„gI,  tl.e  Treaty  between 

tlut  the  boun  la  VT       r  „"'"^''  "'",'''■'■■■">'  "fVUocL,  and    . 
-'#">^,  vol.  iii., ,,  „o  •  —'"""«»'  **  J'«pers,  Foreign 

Canadi  and  Louisiana  ,v/l  T  '"''■'"''^  ''e  boundaries  of 
a  cape  or  promrto  ^i  '58"  ^^  "T;",""?  "?  ""  ^'"»''<=  »' 
"-estwardly  to  the  Lake  Mil  7     '""""''''  "'™»'=  ^""th- 

the  latitude  40o  „tt     ' 7?''  ">!"«"*•«''«■  «o"thwest  to 


■  K 


212 


THE   TREATY   OF   WASHINGTON. 


Spain  and  the  United  States  of  February  ?"',  1819, 
by  wLich  the  former  ceded  to  the  latter  the  two 
Floridas,  carrying  our  territory  down  to  the  Gulf  of 
Mexico,  and  by  which  also  a  line  of  demarkation  was 
run  between  the  territories  of  the  respective  Parties 
west  of  the  Mississippi.  This  line,  commencing  on 
the  Gulf  of  Mexico  at  the  mouth  of  the  River  Sabine, 
proceeds  by  that  river,  the  Red  Rivei*,  and  the  Arkan- 
sas, to  its  source  in  latitude  42°  nojth;  "and  thence 
by  that  parallel  of  latitude  to  the  South  Sea."  And 
Spain  expressly  ceded  to  the  United  States  all  her 
"  rights,  claims,  an  I  pretensions  to  any  territories  east 
and  north  of  the  said  line,  as  thus  defined  and  de- 
scribed by  the  treaty."  To  the  rights,  claims,  and 
pretensions  of  the  United  States  on  the  northwest 
coast  we  could  now  add  those  of  Spain. 

But  another  pretender  to  rights  on  that  coast  now 
appeared  in  the  person  of  Russia,  whose  actual  occu- 
pation came  down  to  the  parallel  of  54°  40';  and 
thereupon  it  was  agreed  between  Russia  and  the 
United  States  by  Treaty  of  April  17, 1824,  that  the 
latter  would  not  permit  any  settlement  by  its  citizens 
on  the  coast  or  islands  north  of  that  degree,  and  that 
no  subjects  of  the  former  should  be  permitted  to  settle 
on  the  coast  or  islands  south  of  the  same  degree. 
Neither  Government,  however,  undertook  to  make 
any  cession  to  the  other.  Nor  was  the  country  south 
of  the  line  described  as  a  territory  or  possession  of 
the  United  States. 

During  the  next  year,  Russia  and  Great  Britain 
concluded  a  treaty  for  the  demarkation  of  the  limits 


THE  NORTHWESTERN  BOUNJ^ARY  -  LINE. 


213 


. 


L 


between  tliem  in  the  same  (juarter  l)y  a  line  which, 
beginning  in  54°  40'  at  the  southernmost  point  of 
Prince  of  Wales  Island,  was  made  to  run  obliquely  to 
strike  the  main-land  at  latitude  56°,  and  then  to  pro- 
ceed parallel  to  the  windings  of  the  coast  at  the  dis- 
tance of  not  exceedino^  ten  marine  leaijues  therefrom 
along  the  summit  of  the  coast  mountains  to  its  inter- 
section with  the  141st  degree  of  longitude  at  Mount 
St.  Elias,  and  thence  due  north  along  that  meridian  to 
the  Frozen  Ocean. 

It  has  been  too  much  the  practice  of  British  navi- 
gators and  British  map-makers  to  affix  English  names 
to  places  previously  visited  and  named  by  other 
Europeans,,  and  to  found  thereon  claims  of  discov^- 
ery.  English  names  are  scattered  along  the  coast  of 
Russian  America, — such  as  Cook's  Inlet,  Prince  Wil- 
liam Sound,  King  George  III.  Archipelago,  Prince 
of  Wales  Archipelago; — but  no  British,  claims  of 
prior  exploration  could  prevail  here  against  the 
claims  of  possession  as  well  as  discovery  presented 
by  Russia. 

In  this  treaty,  each  Government  speaks  as  the  pro- 
prietor and  sovereign  of  the  respective  territories ; 
and  it  is  this  treaty  which  defines  and  marks  out  the 
Territory  o^  Alaska,  as  now  IvAd  by  the  United  States 
under  recent  cession  from  Russia. 

In  this  condition  stood  the  title  for  more  than 
twenty  years:  the  United  States  claiminf^  from  the 
latitude,  of  42°  to  that  of  :>4'  40',  in  virtue,  first,  of 
their  own  discoveries  and  settlement,  and  of  the  right 
of  the  extension  of  Louisiana  until  it  should  reach  the 


^  1 


f  I 

r    I 


'JU 


THE   TREATY   OF    WASHINGTON. 


ocean  or  some  recoguizeu  possession  of  another  Power, 
and,  secondly,  in  virtue  of  the  discoveries  and  rights 
of  extension  of  Spain  ;  and  Great  Britain  claiming  in 
virtue  of  discovery  and  possession,  and  of  rights  of  ex- 
tension of  her  actual  admitted  possessions  in  America. 

Thus  Ave  arrive  at  the  question  of  what  her  actual 
adiiiitted  possessions  were :  which  is  the  key  to  the 
Treaty  of  June  15, 1846,  the  interpretation  of  w^hich 
was  referred  to  the  Emperor  of  Germany. 

On  the  restoration  of  Charles  II.,  projects  of  colo- 
nization and  of  remote  commercial  or  speculative  en- 
terprises, w^hich  had  been  suspended  in  England  dur- 
ing the  Civil  War,  began  to  be  resumed  with  new 
zeal,  comprehending  as  ''veil  the  East  as  the  West 
Indies. 

Among  the  great  territorial  charters  of  that  day, 
one  of  the  most  interesting  is  that  of  the  Hudson's 
Bay  Company,  by  which  the  King  granted  to  sundry 
persons,  including  the  Prince  Bupert,  the  Duke  of 
Albemarle,  the  Earl  of  Craven,  Lord  Arlington,  Lord 
Ashley,  Sir  John  Robinson,  Sir  Edward  Ilungerford, 
and  others  [in  part,  it  will  be  perceived,  the  same  per- 
sons who  obtained  a  grant  of  the  two  Carolinas], 


tttf 


"  The  sole  trade  and  commerce  of  all  those  seas,  straits,  bays, 
rivers,  lakes,  creeks,  and  sounds,  in  whatsoever  latitude  they 
shall  be,  that  lie  within  the  entrance  of  the  straits  commonlv 
called  Hudson's  Straits,  together  with  all  the  lands  and  terri- 
tories upon  the  countries,  coasts,  and  confines  of  the  seas,  bays, 
lakes,  rivers,  creeks,  and  sounds  aforesaid,  that  are  not  already 
actually  possessed  by  or  granted  to  any  of  our  subjects,  or 
possessed  by  the  vibjects  of  any  other  Christian  Prince  or 
State,  with  the  fishing  of  all  sorts  offish,  whales,  sturgeons,  and 


THE  NORTHWESTERN  BOUNDARY -LINE. 


215 


. 


all  otli(,'r  royal  fishes  in  the  seas,  bays,  inlets,  and  rivers  within 
the  premises  and  the  lish  tlierein  taken,  together  with  the  roy- 
alty of  the  sea  upon  the  coasts  within  the  limits  aforesaid,  and 
all  mines  royal,  as  well  discovered  as  not  discovered,  of  gold, 
silver,  gems,  and  precious  stones,  to  be  found  or  discovered 
within  the  territories,  limits,  and  places  aforesaid,  and  that  the 
said  land  be  from  henceforth  reckoned  and  reputed  as  one  of  our 
Plantations  or  Colonies  in  America,  called  '  Rupert's  Land,' " 

This  concession  was  induced,  as  the  preamble  of 
.the  charter  sets  forth,  by  the  reason  that  the  parties 

"  Have,  at  their  own  great  cost  and  charges,  undertaken  an 
expedition  for  Hudson's  Bay,  in  the  northwest  part  of  America, 
for  the  discovery  of  a  new  passage  to  the  South  Sea,  and  for 
the  finding  some  trade  for  furs,  minerals,  and  other  considerable 
commodities,  and  by  such  their  undertaking  have  already  made 
such  diiscoveries  as  do  encourage  them  to  proceed  farthei*  in 
pursuance  of  their  said  designs,  by  means  whereof  there  may 
probably  arise  very  great  advantage  to  us  and  our  Kingdom." 

The  Company's  Charter,  in  common  with  others  of 
that  period,  conveyed  to  them  the  right  to  hold  the 
territory  granted  w^ith  all  rights  and  jurisdictions  ap- 
pertaining thereto,  as  of  the  manor  of  East  Green- 
wich in  Kent ;  the  Company  became  lords  and  pro- 
prietors of  Rupert's  Land  on  condition  of  a  yearly 
payment  to  the  Crown  of  "  two  elks  and  two  black 
beavers ;"  and  no  legal  impediment  existed  to  the  es- 
tablishment on  Hudson's  Bay  of  a  local  political  gov- 
ernment such  as  existed  in  Massachusetts  or  Virgin- 
ia ;  but,  in  reflecting  on  the  slow  growth  of  the  Brit- 
ish Colonies  in  the  more  temperate  latitudes  of  North 
America,  it  will  be  readily  seen  that  no  colonization 
could  be  effected  on  the  frozen  and  desolate  shores 
of  Hudson's  Bay.     In  effect,  the  Company  very  soon 


216 


THE  TREATY  OF  WASHINGTON. 


resolved  itself  into  a  mere  commercial  undertaking 
for  trade  in  the  furs  of  the  vast  region  in  the  space 
between  Canada  or  New  France  and  the  Arctic  Sea, 
inhabited  only  by  wandering  bands  of  Indians. 

When  the  great  Succession  War  broke  out,  involv- 
ing all  Europe,  it  could  not  fail  to  reach  America ; 
for  the  possessions  of  three  of  the  four  principal 
Powers  engaged, — France,  Great  Britain,  and  Spain, 
— occupied  alternate  points  on  the  coast  of  the  At- 
lantic. The  French,  of  course,  endeavored  to  avail 
themselves  of  the  opportunity  to  drive  out  or  to 
weaken  the  English  on  both  sides  of  them,  and  es- 
pecially in  Rupert's  Land,  which  they  invaded  and 
partly  conquered,  but  restored  by  the  subsequent 
Treaty  of  Utrecht. 

After  this  time,  the  Company,  safe  in  its  arctic  sol- 
itudes, prospered  without  check  for  a  century,  filling 
Rupert's  Land  with  forts  and  factories,  and  engross- 
ing the  fur  trade  of  North  America. 

Thereupon  a  rival  Company  entered  the  field,  un- 
der the  auspices  of  the  Province  of  Cuiiada,  founding 
its  enterprise  on  the  assertion  that  Rupert's  Land 
had  only  a  limited  extension  south  and  west,  to  cov- 
er no  more  than  the  water-shed  terminating  at  Hud- 
son's Bay,  with  no  rights  or  jurisdiction  southward 
and  westward  to  the  great  Lakes  and  the  Rocky 
Mountains. 

After  a  long  and  violent  controversy,  the  North- 
west Fur  Company  was  by  agreement  of  parties 
merged  to  the  Hudson's  Bay  Company. 

The  combined  influence  of  the  parties  interested  in 


t 


Jl 


THE  NORTHWESTERN   BOUNDARY-LINE. 


217 


I 


the  aggregate  Company  enabled  it  to  obtain  for  a 
term  of  years,  first  in  1821,  and  afterward  in  1838, 
exclusive  right  to  trade  with  the  Indians  in  certain 
parts  of  North  America  not  belonging  to  Prince  Ru- 
pert's Land. 

The  region  of  country  thus  opened  by  license  ex- 
clusively to  the  Hudson's  Bay  Company  is  described 
in  the  license  of  1838  as  follow^s: 

"The  exclusive  privilege  of  trading  with  the  Indians  in  all 
such  parts  of  North  America  to  the  northward  and  to  the  west- 
ward of  the  lands  and  territories  belonging  to  the  United  States 
of  America  as  should  not  form  part  of  any  of  our  provinces  in 
North  America,  or  of  any  lands  or  territories  belonging  to  the 
said  United  States  of  America,  or  to  any  European  Government, 
State,  or  Power." 

In  SO  far  as  these  licenses  affected  only  the  region 
west  and  south  of  Hudson's  Bay  depending  on  Lake 
Winnipeg,  Lake  Athabasca,  the  two  Slave  Lakes,  and 
other  lands  east  of  the  Rocky  Mountains,  they  did 
not  concern  the  United  States. 

But  in  so  far  as  they  affected  the  region  west  of 
the  Rocky  Mountains,  such  a  license  is  in  plain  viola- 
tion of  treaties  with  the  United  States.  The  Queen 
of  England  could  give  a  license  in  that  region  to  the 
Hudson's  Bay  Company  exclusive  of  all  other  EnglisJi- 
men;  but  she  could  not  give  any  to  exclude  citizens 
of  the  United  States.  That,  indeed,  the  grant  does 
not  profess  to  do;  but,  in  effect,  it  did  that  and  more ; 
for  in  the  hands  of  the  Company  it  was  "  a  charter 
of  licensed  usurpation  and  pillage  in  the  whole  of 
the  described  region  of  North  America."  The  Com- 
pany established  forts  or  posts  at  every  eligible  or 


^r 


218 


TUK  TliKATY   OF  WASHINGTON. 


II 


ill 


a,1 


Ki 


strategic  point  between  the  mountains  and  tlie  shores 
of  the  Pacific ;  theii'  servants  killed  the  fur-bearing 
animals;  they  cut  and  exported  the  timber;  and, 
by  means  of  its  wealth  and  organization,  the  Com- 
pany monopolized  the  commerce  and  the  resources 
substantially  to  the  exclusion  for  a  long  time  of  the 
people  of  the  United  States. 

But  at  length  some  settlements  of  Americans  had 
been  commenced  in  Oregon ;  and  the  attention  of 
Congress  was  called  to  the  usurpations  of  the  Hud- 
son's Bay  Company  by  Mr.  Benton,  Mr.  Linn,  and  the 
writer  of  these  pages :  in  consequence  of  Avhich  steps 
were  taken  to  put  an  end  to  the  joint  occupation  of 
Oregon.  In  fact,  the  Company  had  now  set  up  the 
most  extravagant  pretensions,  exaggerating  a  mere  li- 
cense to  trade  into  a  grant  of  proprietorship  to  the 
whole  of  the  immense  region  south  and  west  of  Ru- 
pert's Land,  to  the  dissatisfaction  of  the  peo])le  of 
Canada  as  well  as  of  the  United  States.  For  it  was 
the  interest  of  the  Company  to  retain  the  whole 
country  occupied  by  them  in  the  condition  of  a  mere 
hunting-field,  and  quite  uninhabited  except  by  vassal 
Indians :  while  the  Canadians  desired  that  it  should 
be  opened  to  colonization,  so  as  to  add  to  the  materi- 
al resources  and  political  force  of  the  Canadian  Prov- 
inces. Parliamentary  inquiry  into  the  rights  of  the 
Company  was  instituted;  it  was  imperatively  instruct- 
ed by  Sir  Edward  Bulwer  Lytton  [afterward  Lord 
Lytton],  Colonial  Minister  [whose  dispatches  show 
that  he  was  not  less  eminent  as  a  statesman  than  as 
a  poet  and  a  novelist],  to  desist  from  all  general  pre- 


n:\ 


THE   NOKTIIWKSTEUX   BOUNDARY- LINK. 


210 


tensions  of  proprietorship  founded  upon  license  to 
trade ;  its  license  was  revoked ;  it  was  compelled  to 
yield  up  Oregon  to  the  United  States.;  and  it  was 
half- persuaded  <ind  half- constrained  to  s(;ll  its  char- 
tered rights  to  the  Canadian  Dominion,  and  to  shrink 
into  comparative  insignificance  in  America. 

When  the  Government  of  the  United  States  enter- 
ed into  negotiations  with  Great  Britain  for  termina- 
ting the  joint  occupation  of  Oregon,  the  machinations 
of  the  Hudson's  Bay  Company  were  the  great  disturb- 
ing fact  which  for  a  long  time  })i'evented  the  conclu- 
sion of  a  treaty  and  its  due  execution. 

Meanwhile  the  two  Governments,  after  extraordi- 
nary contention,  at  length  arrived  at  a  settlement  of 
another  boundaiy  question,  which  had  remained  open 
ever  since  the  Treaty  of  Independence,  namely,  the 
boundary-line  on  the  northeast  between  the  British 
possessions  and  the  United  States  [Treaty  of  Novem- 
ber 20,  1842]. 

The  duration  of  the  Treaty  of  1818  was  limited  to 
ten  years.  As  the  expiration  of  this  time  approached, 
the  American  Government  offered  to  settle  the  ques- 
tion of  Oregon  by  extending  the  line  of  4i)°  to  the 
Pacific  Ocean,  and  announced  this  as  "our  ultimatum." 
The  British  Government  objected  that  this  line  would 
cut  off  the  southern  part  of  Vancouver's  Island.  We 
replied  by  proposing  to  yield  this  part  for  an  equiv- 
alent. But  it  was  for  the  interest  of  the  Hudson's 
Bay  Company,  which  was  in  practical  possession  of  the 
whole  country,  to  defeat  this  attempt  at  settlement, 
and  it  was  defeated,  and  the  United  States  reluctant- 


220 


TIIK  THEATY   OF   WASHING  ION. 


f'  1 


ly  consented  to  the  prolongation  oftlie  nominal  joint 
occupation. 

But  the  discussions  in  Contcress  heretofore  men- 
tioned,  and  the  disposition  of  Americans  to  settle  in 
Oregon,  liad,  in  1842,  rendered  the  joint  occupation 
intolerable  to  the  people  of  the  United  States,  and 
the  negotiation  for  settlement  was  renewed  on  the 
premises  of  the  41)th  j)arallel.  The  baleful  inHuence 
(jf  the  Hudson's  Bay  Com2)any  caused  the  negotiation 
to  drag  on  for  the  period  of  four  years;  when  the 
Treaty  of  184G  was  at  length  concluded,  yielding  to 
Great  Britain  the  southernmost  extremity  of  Van- 
couver's Island. 

It  was  the  (question  of  Vancotiver'' s  Island  which 
chiefly  occupied  the  succeeding  negotiator.^.  To  run 
the  line  on  the  4^)th  parallel  to  the  sea,  i  nd  "  thence 
by  the  Canal  de  Ilaro  and  Straits  of  Fuca  to  the 
ocean,"  was  Lord  Aberdeen's  proposition  to  Mr. 
McLane.  And  the  same  understanding  of  the  ques- 
tion,— that  is,  to  concede  to  Great  Britain  "Vancouver's 
Island,  and  nothing  else  south  of  latitude  49°" — per- 
vades the  dispatches  and  debates  on  both  sides.  And 
on  such  premises,  notwithstanding  much  opposition 
in  Congress  and  out  of  it,  the  United  States  acceded 
to  these  terms  as  a  measure  of  peace  and  of  concilia- 
tion toward  Great  Britain. 

But  strife  was  unexpectedly  renewed  two  years 
afterward  by  Lord  Palmerston,  or  by  Lord  John  Rus- 
sell, who  had  succeeded  as  Premier  to  Sir  Robert  Peel, 
and  their  action  has  kept  up  dispute  on  the  subject 
between  the  two  Governments  for  more  than  twenty 


THE   NOIiTIlWESTKKN   IJOUNDAliY  -  J.LNE. 


years  solely  on  account  ofpi'citensions  which  ought  not 
to  have  been  raised,  and  the  injustice  of  which  has  now 
at  length  been  demonstrated  ])y  the  Award  of  tlie 
Emperor  of  Germany.  If  this  Award  be  unwelcome 
to  'the  people  of  Great  Britain,  no  feeling  of  unkind- 
uess  in  tliat  respect  should  be  attached  by  them  to 
the  United  8tates.  The  Canal  de  llaro  was  undoubt- 
edly intended  by  the  negotiators  of  the  Treaty  of 
184G  as  the  water-boundary  in  that  ([uarter:  that  in- 
tention accords  with  the  obvious  and  only  reasonable 
signification  of  the  language  of  the  ti-eaty. 

THE  AWAKD. 

This  conclusion  is  clearly  and  conclusively  proved 
in  the  Memorial  presented  in  the  name  of  the  Amer- 
ican Government  to  the  German  Emperor  by  the 
American  Plenipotentiary  and  Agent,  Mr.  Geor<T-e 
Bancroft,  and  in  his  Reply  to  tlie  Case  of  Great 
Britain. 

Mr.  Bancroft  was  pre-eminently  fitted  for  the  per- 
formance of  this  duty.  Possessing  intellectual  quali- 
ties of  a  high  order,  and  particular  personal  estimation 
at  the  Court  of  Berlin,  he  enjoyed  the  advantage  of 
having  been  a  member  of  the  Cabinet  under  whose 
auspices  the  Treaty  of  1846  was  negotiated,— of  sub- 
sequently representing  his  Government  at  the  Court  of 
St.  James  at  the  time  when  the  present  controversy 
commenced,— and  of  being  thoroughly  master  of  all 
the  older  diplomatic  incidents  of  the  question  by  his 
studies  as  the  historian  of  the  United  States.  Of  the 
value  of  all  these  qualifications  to  his  Government  on 


U  f 


^> ')'■>. 


TIIK   'rUKATY   OF   WASIIINdTON. 


I'll 
f(|f 


tlie  present  occiision,  we  Iiave  tlie  proof  in  two  most 
coini)lete  and  most  convincing  arguments  which  he 
addressed  to  the  Emperor  of  (rermany. 

Tlie  Agent  on  tlie  part  of  (rreat  Bi'itain  was  Ad- 
miral ffames  C.  Prevost,  who  had  been  the  Commis- 
sioner of  his  Government,  in ,  association  with  Mr. 
Archibald  Campbell,  Commissioner  of  the  United 
States,  for  determining  and  marking  the  lino  of  bound- 
ary prescri))ed  by  the  treaty,  and  who,  of  course,  pos- 
sessed all  the  special  knowledge  requisite  for  the 
preparation  of  any  possible  argument  in  support  of 
the  pretensions  of  Great  Britain. 

The  Emperor,  it  appears,  referred  the  arguments  on 
both  sides  to  three  experts,  Dr.  Grimm,  Dr.  Kiepert, 
and  Dr.  Goldschmidt,  personages  among  the  most 
eminent  of  his  sul)jects  in  jurisprudence  and  in  sci- 
ence, upon  whose  report  he  decided  on  the  21st  of 
October,  1872,  in  the  terms  of  the  reference,  that  the 
claim  of  the  United  States  to  have  the  line  drawn 
through  the  Canal  de  ITaro  is  most  in  accordance 
with  the  true  interpretation  of  the  treaty  concluded 
on  the  15th  of  June,  1846,  between  Great  Britain  and 
the  United  States. 

"This  Award,"  says  the  President's  Message  of  De- 
cember 2, 1872,  "confirms  the  United  States  in  their 
claim  to  the  important  archipelago  of  islands  lying 
between  the  continent  and  Vancouver's  Island,  which 
for  more  than  twenty-six  years  [ever  since  the  ratifi- 
cation of  the  treaty]  Great  Britain  had  contested,  and 
leaves  \is,fo?'  the  first  time  in  the  JiUtonj  of  the  United 
States  as  a  nation,  Avithout  a  question  of  disputed 


THE  NOirniWIvSTKItX  ROI'NDAIiV-LINK.  .>.,•> 

bouiidmy  Ix'tween  our  territory  arid  the  possessions 
of  (rreat  Jkitain  on  this  continent." 

In  recent  debates  in  the  House  of  Lords,  tlie  Earl 
of  Lauderdale  criticised  the  Treaty  of  Washin<,^ton 
in  severe  terms,  partly  on  the  assunij)tion  that^the 
United  States  have  in  reserve  new  chiinis  respectin<^ 
the  northwestern  boundary-line.  lie  is  niistakeih 
JNothing  remains  but  ([uestions  of  hydrograj)hy  for 
Commission(>rs  to  determine,  which  there  is  no  diffi. 
culty  in  doing;  and  arrangements  Lave  already  been 
made  by  the  two  Governments  for  the  upi)ointment 
and  organization  of  the  requisite  Commission. 

In  conclusion,  let  me  say  that  Great  Britain  has  no 
cause  to  regret  the  adverse  conclusion  of  this  contro- 
versy.   The  conditions  of  the  Treaty  of  1 840  involved 
positive  concession  on  the  part  of  the  United  States, 
if  not  as  to  the  general  line,  yet  in  giving  up  the 
whole  of  the  Island  of  Vancouver  without  any  com- 
pensation.    We  certainly  did  not  mean  at  the  same 
time  to  give  up  the  important  island  of  San  Juan,  and 
various  other  islands  intervening  l)etween  that  and 
the  main  land,  which  would  have  been  the  effect  of 
admitting  the  Straits  of  Rosario  as  the  water-bound- 
ary.    We  knew  that  prior  to  and  during  the  negotia- 
tions the  Canal  de  Haro  was  expressly  mentioned 
and  always  understood  as  the  true  channel   corre- 
.spondmg  to  the  desire  of  the  British  Government  to 
secure  Vancouver's  Island. 

To  Great  Britain  it  can  be  of  no  possible  conse- 
quence which  of  the  lines  of  boundary  should  be  es- 
tablished.    What  possessions  remain  to  her  on  the 


TIE 


.15 


224 


THE  TUKA'IV    OF   \VASlIlN(iT()N. 


iioi'tliwest  coast  of  America,  Vancouver's  Island  and 
British  Coliiinbia  can  not  ever  be  of  special  impor- 
tance to  her  either  as  a  military  post  or  as  a  coh)ny. 
Noi"  ean  tht^y  bti  of  any  niiliUtnj  advantage  to  tlie 
Canadian  Dominion,  and  may,  on  the  contraiy,  con- 
stitute in  her  hanc's  a  temptation  to  needless  ex})ense 
in  fortifications,  notwithstanding  which,  owing  to  the 
remoteness  of  those  countries  by  land  and  their  in- 
accessibility to  her  by  sea,  the  Dominion  would  iind 
them  quite  untenable  in  the  j)resence  of  the  powerful 
American  States  on  the  shores  of  the  Pacific  Ocean. 

To  the  United  States,  on  the  other  hand,  it  is  im- 
portant to  have  had  the  question  decided  in  our  favor. 
We  are  now  a  real  power  on  the  Pacific  coast,  which 
Great  Britain  is  not  and  can  not  be.  Holding  the 
Territory  of  Alaska  to  the  north  of  the  British  pos- 
sessions, the  Territory  of  Washington,  the  State  of 
Oregon,  and  the  great  and  rich  State  of  California 
ceded  to  us  by  the  Mexican  Republic,  with  the  grow- 
ing States  and  Territories  on  their  rear,  it  would  have 
been  to  us  intolerable  to  be  excluded  from  the  great 
channel  between  Vancouver's  Island  and  the  main- 
land, or  to  traverse  it  only  under  the  guns  of  British 
fortresses  on  that  island.  Such  a  settlement  would 
have  had  in  it  the  germs  of  war :  the  present  affords 
assurance  of  stable  peace. 

Happily  the  United  States  and  Great  Britain  are 
now  delivered  from  the  complications  in  their  rela- 
tions occasioned  by  the  exorbitant  powder  of  the  Hud- 
son's Bay  Company.  By  other  provisions  of  the  same 
Treaty  of  1846,  the  United  States  had  made  to  Great 


■ 


\ 


of 


r 


TIIK   NORTH WKSTERN  BOUNDARY- LINE. 

Britain  the  concession  of  recognizing  certain  preteu- 
sions  of  that  ConiDany  in  Oregon  and  Wasliington, 
founded  on  mere  encroacbmeut,  and,  in  order  to  be  re- 
lieved of  these  pretensions,  paying  to  the  Company  a 
small  sum  in  satisfaction  of  its  claims,  about  one  tenth 
of  what  was  demanded  for  it  in  the  name  of  the  J^rit- 
ish  Government. 

Lord  Milton  expresses  the  opinion  that  "On  iijxd 
andeonltahle  solution  of  the  so-called  San  Juan  Water- 
boundary  Question  depends  the  future,  not  only  of 
British  Columbia,  but  also  of  the  entire  British  pos- 
sessions in  North  America."     By  "just  and  eciuitable 
solution"  he  means,  of  course,  decision  in  favor  of 
Great  Britain.     If  the  premises  are  correct,  then  the 
consequences  are  a  fact  accomplished.     But  he  over- 
estimates the  value  of  the  Archipelago  of  San  Juan  to 
Great  Britain.     His  opinion  assumes  what  is  impossi- 
ble, the  acquisition  of  considei'able  intrinsic  strength 
on  the  part  of  British  Columbia,  sustained  by  railroad 
connection  with  the  Provinces  of  Ontario  and  Quebec. 
But  what  would  avail,  in  a  military  point  of  view,  a 
railroad  running  through  a  thousand  miles  of  com- 
paratively uninhabited  country  within  ea^v  reach  at 
every  point  to  the  armies  of  the  United  States?  'I 
think  the  future  of  the  British  possessions  in  North 
America  depends  on  a  different  order  of  facts,  of  which 
something  will  be  said  in  another  chapter  in  speak- 
ing of  the  commercial  relations  of  the  United  States 
and  the  Canadian  Dominion. 


^"'  '  l- 


226 


THE  TREATY  OF  WASHINGTON. 


f  I 


i-ll- 


j*ti'l 


CHAPTER  V. 

THE    FISHERIES. 

HISTORY  OF  THE   QUESTION. 

The  Treat  1  of  Independence  was,  I  repeat,  a  vir- 
tual partition  of  tjie  British  Empire  in  America  be- 
tween the  Metropolis  and  the  Thirteen  United  Col- 
onies. It  was  not  a  treaty  founded  on  military  pos- 
session :  for  the  Colonies  had  no  such  possession  save 
along  the  coast  of  the  Atlantic  Ocean,  and  Great 
Britain  occupied  several  posts  north  and  west  of 
the  Ohio  and  on  the  Great  Lakes.  The  theory  of  the 
treaty  was  to  recognize  the  Colonies  as  sovereign  ac- 
cording to  their  political  limits  as  fixed  by  charter 
and  by  the  public  law  of  England. 

In  conformity  with  this  theory,  the  treaty  stipu- 
lates that  the  United  States  shall  continue  in  the  en- 
joyment of  the  coast  fisheries,  as  follows  : 

"  Article  III.  It  is  agreed  that  the  people  of  the  United  States 
shall  continue  to  enjoy  unmolested  the  right  to  take  fish  of  ev- 
ery kind  on  the  Grand  Bank,  and  on  all  the  other  banks  of  New- 
foundland ;  also  in  the  Gulf  of  St.  Lawrence,  and  at  all  other 
places  in  the  sea  where  the  inhabitants  of  both  countries  used 
at  any  time  heretofore  to  fish ;  ai.d  also  that  the  inhabitants  of 
the  United  States  shall  have  liberty  to  take  fish  of  every  kind 
on  such  part  of  the  coast  of  Newfoundland  as  British  fishermen 
shall  use  [but  not  to  dry  or  cure  the  same  on  that  island] ;  and 


THE  FISHERIES. 


yjii 


also  on  the  coasts,  bays,  and  creeks  of  all  other  of  His  Britannic 
Majesty's  dominions  in  America;  and  that  the  American  fish- 
ermen shall  have  liberty  to  dry  and  cure  fish  in  any  of  the  un- 
settled bays,  harbors,  and  creeks  of  Nova  Scotia,  Magdalen  Isl- 
ands, and  Labrador,  so  long  as  the  same  shall  remain  unsettled ; 
but  so  soon  as  the  same  or  either  of  them  shall  be  settled  it 
shall  not  be  lawful  for  the  said  fishermen  to  dry  or  cure  fish'at 
the  said  settlement,  without  a  previous  agreement  for  that  pur- 
pose with  the  inhabitants,  proprietors,  or  possessors  of  the 
ground." 

Notwithstanding  the  absolute  terms  of  this  treaty 
in  regard  to  the  question  of  peace,  there  survived  on 
both  sides  so  much  of  irritation,  and  so  many  points 
of  mutual  relation  remained  uncertain,  that  the  treaty 
was  in  some  respects  little  more  than  a  truce.     We 
had  special  cause  to  complain  of  the  persistent  occu- 
pation of  northwestern  posts  by  Great  Britain,  and  its 
effect  on  the  Indians  within  our  lines.     On  the  other 
hand,  to  say  nothing  of  minor  matters,  when  the  wars 
of  the  French  Revolution  commenced,  and  the  French 
Republic  undertook  to  use  our  ports  as  the  base  of 
naval   operations    against  Great  Britain,  the   latter 
Power  took  umbrage  of  course ;  and  it  was  only  the 
firm  attachment  of  President  Washington  to  peace, 
which  prevented  these  difficulties  from  fatally  em' 
broiling  the  two  countries,  and  which  led  to  the  con- 
elusion  of  the  Treaty  of  December  19,  1794,  as  the 
similar  spirit  of  President  Grant  led  to  the  conclusion 
of  the  Treaty  of  Washington. 

During  the  next  ten  years,  the  United  States  labor- 
ed  to  maintain  their  neutrality  in  the  presence  of  the 
universal  war  by  land  and  sea  which  raged  between 
the  great  European  Powers.     Both  France  and  En- 


22S 


THE  TREATY   OF  WASHINGTON. 


1 

' 

p 

1 

1 

if 

^ 

> 

gland  gave  to  us  good  cause  of  rupture ;  we  barely 
escaped  war  witJi  France  in  1798;  we  were  forced 
into  war  with  England  in  1812;  and  in  the  course 
of  all  these  events  the  hand  of  the  Government  was 
restrained,  if  not  paralyzed,  by  the  factious  force  of 
sywjyathleii  in  the  United  States,  on  the  one  side  for 
France  and  on  the  other  for  England.  Hence,  alike 
in  the  quasi  war  with  the  former,  and  the  declared 
war  \,  ith  the  latter,  the  results  as  to  the  United  States 
were  uncertain,  imperfect,  trivial  even,  compared  with 
the  great  objects  which  might  have  been  accomplish- 
ed by  united  counsels. 

On  the  side  of  France,  however,  it  must  be  admit- 
ted that  our  disposition  to  avoid  pushing  matters  to 
extremities  contributed  to  gain  for  us  the  immense 
benefit  of  the  acquisition  of  Louisiana. 

Afterward,  although  the  Berlin  and  Muan  Decrees 
of  France  and  the  Orders  in  Council  of  Great  Britain 
constituted  each  alike  good  cause  of  war  with  either, 
yet  the  United  States  held  back  at  vast  sacrifice,  until 
continued  assertion  of  the  right  to  impress  seamen  on 
board  of  our  merchant  ships,  and,  indeed,  to  visit  our 
ships-of  war,  and  other  exaggerations  of  belligerent 
right,  forced  us  into  w^ar  with  Great  Britain. 

The  treaty  by  which  that  war  was  concluded  is 
one  of  the  most  unsatisfactory  in  the  annals  of  the 
United  States.  It  w^as  absolutely  silent  in  regard  to 
all  the  subjects  of  controversy  wdiich  had  occasioned 
the  war.  Nothing  is  said  of  the  belligerent  encroach- 
ments of  Great  Britain  on  the  neutral  rights  of  the 
United  States,  nothinir  of  maritime  search,  nothing?  of 


>S99nRS" 


"■"•'•'"'»'*— iHTOll 


• 


THE  FISIIEKIES. 


229 


the  impressment  of  real  or  pretended  British  su1>jects 
on  board  ships  of  the  United  States.  And  it  left 
room,  by  its  silence,  ijv  Great  Britain  to  raise  niies. 
tion  of  our  right  to  participate  in  the  coast  fisheries 
which  question,  although  dealt  with  from  time  to  time' 
in  successive  treaties,  has  more  than  once  seriously 
endangered  the  peace  of  the  two  Governments 

Does  war  have  the  effect  of  annulling  all  existino- 
treaties  ?  A  general  answer  to  this  question  is  given 
by  one  of  the  most  authoritative  of  modern  publicists 
[Calvo]  as  follows: 

"If  the  treaty  of  peace  modifies  anterior  treaties,  or  express- 
ly declares  the  renewal  of  them,  the  dispositions  of  the  treaty 
o   peace  are  thereafter  to  constitute  the  law;  but  if  no  partic- 
ular  mention  is  made  in  this  respect,  the  anterior  treaties  must 
necessarily  continue  to  have  full  force  and  effect.     In  order 
that  they  should  be  deemed  definitively  abrogated,  it  would 
be  requisite  that  they  shall  not  only  be  suspended  by  the  war 
but  annulled  in  fact,  as  in  the  case  of  treaties  of  alliance  of 
which  the  raison  d^etre  ceases  at  the  end  of  the  war:  it  would 
be  requisite,  indeed,  that  their  contents  should  be  incompatible 
with  the  stipulations  of  the  treaty  of  peace,  which  occurs  for 
example,  in  what  regards  ancient  treaties  relative  to  the  de- 
Jmiitation  of  frontiers  between  two  States." 

The  Supreme  Court  of  the  United  States  lays  down 
the  law  as  follows: 

"  We  think  that  treaties  stipulating  for  permanent  rights  and 
general  aiTang^ments,  and  professing  to  aim  at  perpetuity,  and 
to  deal  with  the  case  of  war  as  well  as  of  peace,  do  not'cease 

while  It  lasts ;  and  unless  they  are  waived  by  the  parties  or 
new  and  repugnant  stipulations  are  made,  they  revive  in  their 
operations  at  the  return  of  peace." 

Such  has  been  the  received  doctrine  in  the  United 


230 


THE  TREATY  OF  WASHINGTON. 


m 


States,  to  the  effect  that  war  does  not,  as  an  absolute, 
univevsal  rule,  abrogate  existing  treaties,  regardless 
of  their  tenor  and  particular  contents ;  and  it  is  the 
only  doctrine  compatible  with  reason,  justice,  commour 
sense,  and  the  diplomatic  history  of  Europe. 

But  the  British  Government,  in  the  celebrated  dis- 
patch to  Mr.  Adams  of  October  30,  1815,  signed  by 
Lord  Bathurst,  and  understood  to  be  the  composition 
of  Mr.  Canning,  declared  the  position  of  Great  Britain 
to  be  :  "  She  knows  no  exception  to  the  rule  that  all 
treaties  are  put  an  end  to  by  a  subsequent  war  be- 
tween the  same  parties."  This  proposition,  in  its  ab- 
soluteness of  expression,  if  it  is  intended  as  an  asser- 
tion of  any  established  practice  of  nations,  or  any  rec- 
ognized doctrine  of  the  law  of  nations,  is  unfounded 
and  unauthorized.  Many  treaties  are  made  precisely 
for  the  case  of  war,  and  only  become  efficacious  in 
virtue  of  the  existence  of  war.  The  assertion  of  Lord 
Bathurst  is  altogether  too  broad,  as  Dr.  Bluntschli 
demonstrates. 

Nevertheless,  acting  on  such  extreme  premises.  Great 
Britain  pretended  that  our  rights  of  fishery  had  been 
abroga+ed  by  the  war,  and  were  not  revived  by  peace; 
and  that  this  effect  was  the  true  interpretation  of  the 
omission  to  mention  the  subject  in  the  Treaty  of 
Ghent. 

The  Commissioners  of  the  United  States  who  ne- 
gotiated tha  Treaty  of  Ghent  were  men  of  unques- 
tionable patriotism  and  of  the  highest  character  and 
intelligence :  it  would  be  out  of  place  here  to  reopen 
the  dispute  as  to  certain  special  causes  of  the  failui'e 


t.:e  fisheries. 


231 


the 
of 

Ine- 
[es- 
Ind 
^en 
lire 


of  the  Commissioners  to  secure  in  that  treaty  recog- 
nition of  the  fishery  rights  of  the  United  States.  But 
it  is  due  to  the  memory  of  the  American  Commission 
ers,  and  especially  to  Mr.  Gallatin,  Mr.  Adams,  and 
Mr.  Bayard,  to  say  that,  in  all  the  negotiation  at  Ghent, 
they  and  their  associates  were  hampered  by  the  dis- 
couraged state  of  mind  of  the  American  Government, 
embarrassed,  as  it  was,  by  political  difficulties  at 
home,  and  alarmed,  if  not  terrified,  by  the  triumph  of 
Great  Britain  in  Spain  and  Fi'ance,  and  the  total  over- 
throw of  Napoleon,  which  seemed  to  leave  the  Brit- 
ish Government  free  to  dispatch  overwhelming  forces 
of  sea  and  land  against  the  United  States. 
•  The  autumn  subsequent  to  those  events  was  the 
darkest  period  in  the  history  of  the  country.  Noth- 
ing but  the  shock  produced  by  ine  great  change  in 
the  whole  face  of  aftairs  in  Europe  could  have  extort- 
ed from  the  American  Government  those  final  instruc-. 
tions  to  our  Commissioners,  which  authorized  them 
to  agree  to  the  status  quo  ante  helium  as  the  basis  of 
negotiation, — which  spoke  of  our  right  to  the  fisheries, 
and  of  our  foreign  commerce,  in  equivocal  terms, — 
and  which,  indeed,  left  the  Commissioners  free  to  con- 
clude such  a  treaty  as  their  own  judgment  should 
approve  under  existing  circumstances,  provided  only 
they  saved  the  rights  of  the  United  States  as  an  inde- 
pendent nation. 

How  different  might  and  would  have  been  those 
instructions,  had  the  Government  but  struggled  on  a 
little  longer  against  the  adverse  circumstances  of  the 
hour !    Courage  and  procrastination  would  have  made 


T"" 


!H 


'li! 


' 


232 


THE   TREATY   OF   WASHINGTON. 


US  masters  of  the  situation,  and  enabled  us  to  dictate 
terms  to  Great  Britain. 

Remember  that  the  Treaty  of  Ghent  was  signed  on 
the  24th  of  December,  1814,  and  that  the  disastrous 
defeat  of  the  Britisli  forces  attacking  New  Orleans  oc- 
curred  a  fortnight  afterward,  on  the  8th  of  January, 
1815.  This  event,  if  the  negotiation  at  Ghent  had 
remained  open,  could  not  but  have  strengthened  the 
American  Government ;  and,  two  months  later,  all 
the  difficulties  in  its  path  would  have  been  removed 
by  the  landing  of  Napoleon  at  Golf  Jouan  [March  1, 
1815]  and  the  renewal  of  the  war  in  Europe. 

But  the  pretension  of  Great  Britain,  that  the  war 
had  abrogated  any  part  of  the  Treaty  of  Indepen- 
dence, was  evidently  untenable ;  and  the  justice  of 
the  cause  of  the  United  States  was  so  manifest  that, 
after  three  or  four  years  of  discussion,  the  British 
Government  agreed  to  the  ex^^ress  recognition  of  our 
fishery  rights  as  follows  [Treaty  of  October  20,1818]: 

"Whereas  differences  have  arisen  respecting  the  liberty 
claimed  by  the  United  States,  for  the  inhabitants  thereof,  to 
take,  dry,  and  cure  fish  on  certain  coasts,  bays,  harbors,  and 
creeks  of  His  Britannic  Majesty's  dominions  in  America,  it  is 
agreed  between  the  high  contracting  parties  that  the  inhabit- 
ants of  the  said  United  States  shall  have,  forever,  in  common 
with  the  subjects  of  His  Britannic  Majesty,  the  liberty  tv>  take 
fish  of  every  kind  on  that  part  of  the  southern  coast  of  New- 
foundland which  extends  from  Cape  Ray  to  the  Rameau  Isl- 
ands, on  the  western  and  northern  coast  of  Newfoundland 
from  the  said  Caj)e  Ray  to  the  Quirpon  Islands,  on  the  shores 
of  the  Magdalen  Islands,  and  also  on  the  coasts,  bays,  harbors, 
and  creeks  from  Mount  Joly,  on  the  southern  coast  of  Labra- 
dor, to  and  througli  the  Straits  of  Bellcisle,  and  thence  north- 


THE   FISIIEHIlvS. 


233 


■i 


wardly  indefinitely  along  the   coast,  without   prejudice,  how- 
ever, to  any  of  the  exclusive  ri<]jhts  of  the  Hudson's  Bay  Com- 
pany.    And  that  the  American  fishermen  shall  also  have  lib- 
erty, forever,  to  dry  and  cure  fish  in  any  of  the  unsettled  hays, 
harbors,  and  creeks  of  the  southern  part  of  the  coast  of  New- 
foundland, hereabove  described,  and  of  the  coast  of  Labrador; 
but  so  soon  as  the  same,  or  any  portion  thereof,  shall  l)e  settled, 
it  shall  not  be  lawful  for  the  said  fishermen  to  dry  or  cure  fish 
at  such  portion  so  settled,  without  previous  agreement  for  such 
purpose  with  the  inhabitants,  proprietors,  or  possessors  of  the 
ground.     And  the  United  States  hereby  renounce,  forever,  any 
liberty  heretofore  enjoyed  or  claimed  by  the  inliabitants  there- 
of to  take,  dry,  or  cure  fish  on  or  within  three  marine  miles 
of  any  of  the  coasts,  bays,  creeks,  or  harbors  of  His  Britannic 
Majesty's  dominions  in  America,  not  included  within  the  above- 
mentioned  limits :  Provided,  however,  that  the  American  fisher- 
men shall  be  permitted  to  enter  such  bays  or  harbors  for  the 
purpose  of  shelter  and  of  repairing  damages  therein,  of  pureiias- 
ing  wood,  and  of  obtaining  water,  and  for  no  other  purpose 
whatever.     But  they  shall  be  under  such  restrictions  as  may 
be  necessary  to  prevent  their  taking,  drying,  or  curing  fish 
therein,  or  in  any  other  manner  whatever  abusing  the  ])rivi- 
leges  hereby  reserved  to  them." 

In  virtue  of  these  treaty  provisions,  citizens  of  the 
United  States  continued  to  fish  on  the  coasts  of  the 
British  Provinces  without  interruption  for  some  twen- 
ty years,  when  question  was  raised  as  to  their  right 
to  fish  ivithin  the  bays  or  indents  of  the  coast,  in 
consequence  of  an  opinion  of  the  Law  Officers  of  the 
Crown  that  the  expression  "three  marine  miles  of 
any  of  the  coasts,  bays,  creeks,  or  harbors,"  within 
which  citizens  of  the  United  States  were  excluded 
from  any  right  of  fishing  on  the  coast  of  British  Amer- 
ica, intends  miles  "to  be  measured  from  the  headlands, 
or  extreme  points  of  land  next  the  sea  or  the  coast,  or 


234 


TIIK   TKEATY   OF   WASHINGTON. 


ni 


'U 


h 


iff 


of  tlie  entrance  of  Lays  or  indents  of  tlie  coast,"  and 
that,  consequently,  American  fisliernieu  had  no  right 
to  enter  bays,  there  to  take  fish,  altliough  the  fishing 
might  be  at  a  greater  distance  than  three  miles  from 
the  shore  of  the  bay. 

This  opinion,  be  it  observed,  makes  no  distinction 
between  close  bays  and  open  ones,  large  indents  of 
the  coast  and  small  ones,  and,  if  carried  into  efiect  by 
the  British  Government,  would  exclude  citizens  of  the 
United  States  from  a  large  part  of  the  productive  fish- 
inof-Cfrounds  on  the  coast  of  British  America. 

Now,  strange  to  say,  this  opinion  of  the  Law  Officers 
of  the  Crown  is  based  on  a  mere  blunder  of  theirs, 
or,  to  say  the  least,  on  a  fiction,  or  a  bald  interpolation. 

After  stating  their  conclusion,  they  assign,  as  the 
sole  reason  of  it : 

"  As  [that  is,  because]  we  are  of  opinion  that  the  term  '  head- 
land '  is  used  in  tlie  treaty  to  express  the  part  of  the  land 
wo  have  before  mentioned,  including  the  interior  of  the  bays 
and  the  indents  of  the  coasts." 

It  is  not  true  that  "the  term  'headland'  is  used  in 
the  treaty  to  express  the  part  of  the  land  we  have 
before  mentioned." 

Neither  the  term  "  headland  "  nor  any  word  of  simi- 
lar signification  is  to  be  found  in  the  treaty.  The 
Law  Officers  of  the  Crown  undertook  to  construe  the 
treaty  without  reading  it,  and  by  this  presumptuous 
carelessness  caused  the  British  Government  to  initi- 
ate a  series  of  measures  of  a  semi-hostile  character, 
which  came  very  near  producing  another  war  be- 
tween Great  Britain  and  the  United  States. 


THE  FISIIKIIIKS. 


235 


It  may  he  (|uite  admissible  for  tlie  British  Gov- 
ernment, as  they  are  accustomed  to  do,  ^o  tlirow 
off  all  their  res])onsibilitiea  on  the  "Law  Officers 
of  the  Crown,"  when  the  (Question  is  one  of  mere 
domestic  relation  ;  hut  it  is  dangerous  for  that 
(xovernment  to  do  so  in  matters  atlecting  other  Gov- 
ernments. 

We  have  already  had  occasion  to  comment  on  the 
very  extraordinary  circumstances  attending  the  fail- 
ure of  the  Law  Officers  of  the  Crown  to  report  upon 
the  case  of  the  Alabama^  and  its  disastrous  influence 
on  the  conduct  of  the  Government. 

As  to  the  opinion  of  the  "Law  Officers  of  the 
Crown  "  in  construction  of  the  fishery  clauses  of  the 
treaty  of  1818,  it  is  difficult  to  say  which  produced 
the  more  amusement  or  amazement  in  the  United 
States,  the  fact  that  the  "Law  Officers"  should  inter- 
polate a  phrase  into  the  treaty  in  order  to  give  to 
their  opinion  its  sole  foundation  to  stand  upon,  or 
that  the  British  Government  should  placidly  accept 
such  fallacious  and  baseless  reasoning  without  chal- 
lenge, and  proceed  in  obedience  to  it  to  enter  into  hos- 
tile maritime  operations,  and  hurry  on  to  the  verge 
of  war  against  the  United  States. 

After  much  agitation  and  discussion,  however,  the 
question  was  settled  for  the  time  being  by  articles 
of  the  Treaty  of  September  9, 1854,  commonly  called 
the  Reciprocity  Treaty,  as  follows : 

"Article  I.  It  is  agreed  by  the  high  contracting  Parties  that, 
in  addition  to  the  liberty  secured  to  the  United  States  fishermen 
by  the  above-mentioned  Convention  of  October  20,  1818,  of 


230 


THE  TREATY  OF   WASHINGTON. 


V 


I! 


ill 


taking,  curing,  and  drying  fish  on  certain  coasts  of  the  Uritish 
Nortli  American  Colonies  tliercin  defined,  the  inhabitants  of 
the  United  States  shall  have,  in  common  with  the  subjects 
of  Her  Britannic  Majesty,  the  liberty  to  take  fish  of  every  kind, 
except  shell-fish,  on  the  sea-coasts  and  shores,  and  in  the  bays, 
harbors,  and  creeks  of  Canada,  New  lirunswick.  Nova  Scotia, 
Prince  Edward's  Island,  and  of  the  several  islands  thereur'  " 
adjacent  [and,  by  another  article,  Newfoundland],  without  be- 
ing restricted  to  any  distance  from  the  shore,  with  permission 
to  land  upon  the  coasts  and  shores  of  those  Colonies  and  the 
islands  thereof,  and  also  upon  the  Magdalen  Islands,  for  the 
purpose  of  drying  their  nets  and  curing  their  fish ;  provided 
that,  in  so  doing,  they  do  not  interfere  with  the  rights  of  j)ri- 
vate  property,  or  with  British  fishermen  in  the  peaceable  use 
of  any  part  of  the  same  coast  in  their  occupancy  for  the  same 
purpose. 

"It  is  understood  that  the  above-mentioned  liberty  applies 
solely  to  the  sea-fishery,  and  that  the  salmon  and  shad  fisheries, 
and  all  fisheries  in  rivers  and  the  mouths  of  rivers,  are  hereby 
reserved  exclusively  for  British  fishermen." 

Similar  provision  was  made  in  Article  II.,  with  like 
exception,  for  the  admission  of  British  subjects  to 
take  fish  on  a  part  of  the  sea-coasts  and  shores  of  the 
United  States. 

It  was  further  agreed  that  Commissioners  should 
be  appointed,  who  shall 

"  Examine  the  coasts  of  the  North  American  provinces  and 
of  the  United  States  embraced  within  the  provisions  of  the 
first  and  second  articles  of  this  treaty,  and  shall  designate  the 
places  reserved  by  the  said  articles  from  the  common  right  of 
fishing  therein." 

But  these  provisions  were  temporary  only,  being 
subject  to  be  terminated  on  a  year's  notice,  after  the* 
expiration  of  ten  years,  and  the  treaty  was  in  fact 


TIIK   FISIIKKIKS. 


237 


denounced  on  the  17th  of  March,  18G;j,  and  exjnred 
on  the  17th  of  March,  18GG. 

In  truth,  the  United  States  had  purchased  the  fish- 
ery provisions  of  this  treaty  by  otlier  i)rovisions  to 
the  effect  that  certain  enumerated  articles  of  the 
growth  and  produce  of  the  British  Colonies  of  Cana- 
da,  New  Brunswick,  Nova  Scotia,  Prince  Edward's 
Island,  and  Newfoundland,  or  of  the  United  States, 
should  be  "  admitted  into  each  country  respectively 
free  of  duty." 

But  the  recijyrocity  here  w^as  nearly  nominal,  the 
great  benefits  of  the  provision  inuring  to  the  British 
Colonies.  The  fisheries  had  come  to  be  the  incident 
of  a  larger  question,  namely,  that  of  the  terms  of  com- 
mercial intercourse  between  the  United  States  and 
the  British  Colonies  in  North  America. 

Dissatisfaction  in  the  United  States  with  this  state 
of  things  led  to  the  denouncement  of  the  treaty,  and 
to  the  revival  of  a  controversy  between  the  two  Gov- 
ernments regarding  the  fisheries :  which  controversy 
was  terminated  by  the  Treaty  of  Washington. 

PROVISIONS   OF   THE   TREATY  OF  WASHINGTON. 

By  Articles  XVIIL,  XIX.,  and  XX.,  the  fishery 
stipulation  of  the  Treaty  of  September  9,  1854,  are 
in  substance  revived,  with  further  provision  for  the 
appointment  of  a  Commission  to  settle  any  outstand- 
ing question  as  to  the  "  jilaces  "  of  fishery  reserved  by 
either  Government. 

'     It  is  further  agreed  that  fish  -  oil  and  fish  of  all 
kinds,  except  fish  of  the  inland  lakes  and  of  the  riv- 


m  f 


I;;                 ' 

|l 

1  M 

238 


THK   TREATY    OF   WASIIINOTUN. 


era  fulling  into  tbom,  and  ox('i;pt  fisb  preserved  in  oil, 
being  the  ])roduce  of  the  fislierieH  of  the  United 
StateH,  or  of  the  Dominion  of  Canada,  or  of  Prince 
Edward's  Island,  sliall  Ije  admitted  in  each  country 
respectively  free  of  duty. 
Then  follows : 

"Article  XXII.  Inasmuch  as  it  is  assorted  by  the  Govern- 
ment of  ller  I?ritannic  Majesty  that  the  privik'fjjeH  accorded 
to  tlie  citizens  of  tiie  United  States  under  Article  X\'III.  of 
this  Treaty  are  of  greater  value  than  those  accordecl  by  Arti- 
cles XIX.  and  XXI.  of  this  Treaty  to  the  subjects  of  Her  Hri- 
tannic  Majesty,  and  this  assertion  is  not  admitted  by  the  Gov- 
ernment of  the  United  States,  it  is  further  agreed  that  Com- 
missioners sliall  be  appointed  to  determine,  having  regard  to 
the  privileges  accorded  by  the  United  States  to  the  subjects 
of  Iler  Uritannlc  Majesty,  as  stated  in  Articles  XIX.  and  XXI. 
of  this  Treaty,  the  amount  of  any  compensation  which,  in  their 
opinion,  ought  to  be  paid  by  the  Government  of  the  United 
States  to  the  Government  of  Her  Britannic  Majesty  in  return 
for  the  privileges  accorded  to  the  citizens  of  the  United  States 
under  Article  XVIII.  of  this  Treaty ;  and  that  any  sum  of 
money  which  the  said  Commissioners  may  so  award  shall  be 
paid  by  the  United  States  Government,  in  a  gross  sum,  withio 
twelve  months  after  such  Award  shall  have  been  given." 

The  Commissioners  referred  to  in  this  article  are 
to  be  appointed,  one  by  each  of  the  two  Govern- 
its,  and  the  third  by  the  two  Governments  con- 
^,  jintly,  or,  in  case  of  disagreement  between  them,  by 
the  Minister  at  London  of  the  Emperor  of  Austria 
and  Hungary.  The  Commissi'^n  is  to  sit  at  Halifax, 
in  the  Province  of  Nova  Scotia. 

With  this  provision  ends  the  list  of  Goveimments 
concerned  in  this  truly  international  Treaty,  which,  in 
the  interests  of  peace,  engages  the  co-operation  of 


THE   FISHKKIKS. 


230 


eight  sovereign  States,  namely,  Italy,  Switzerland, 
lirazil,  Sweden  a^id  Norway,  Spain,  Austria  and 
Hungary,  Great  Britain,  anil  the  United  States. 

rKOIJABLE   AMOUNT  OF   INDEMNITY. 

The  peculiai'ity  of  the  arrangement,  we  see,  is  that 
the  United  States  f^re  to  make  compensation  to  Great 
Britain  for  any  excess  in  value  of  the  privileges  of 
fishery  accorded  to  the  United  States  above  those 
accorded  to  Great  Britain.  One  party  asserts,  the 
other  denies,  such  excess  of  value. 

This  question  involves  examination  of  facts,  but  it 
also  suggests  inquiry  of  right. 

What  are  the  privileges  which  the  United  States 
acquire  under  Article  XVIII.  of  the  Treaty  of  Wash- 
ington ?  Certainly  not  any  which  they  possessed  al- 
ready. 

Now,  in  virtue  of  subsisting  stipulations  of  the 
ll^eaty  of  1818,  we  possessed  the  recognized  right  of 
fishery  along  the  coasts,  and  in  the  bays,  harbors,  and 
creeks  of  British  Ncrth  America,  subject,  in  so  far  as 
regards  the  present  question,  only  to  the  renunciation 
which  we  made  in  that  treaty  of  the  liberty  previ- 
ously enjoyed  or  claimed,  to  take,  dry,  or  cure  fish  on 
or  witlmi   three  marine   miles  of  the   coasts,  bays 
creeks,  or  harbors   of  certain  defined  parts  of  the 
shores  of  British  America.     The  Treaty  of  Washing- 
ton removes  this  limitation.     Hereafter  we  are  to 
fish  on  the  sea-coasts  and  shores,  and  in  the  bays 
harbors,  and  creeks,  previously  subject  to  limitation 
of  three  marine  miles,  "  without  beim.  restricted  to 


~] 


R! 


240 


THE   TREATY   OF   WASHINGTON. 


any  distance  from  the  shore."  But  we  are  not  re- 
quired to  pay  for  any  relinquishment  on  the  part  of 
Great  Britain  of  the  fictitious  chiim  founded  on  the 
erroneous  opinion  of  the  Law  Officers  of  the  Crown, 
which,  on  the  false  assumption  that  "headlands"  are 
mentioned  in  the  Treaty  ci  1818,  extends  an  imagi- 
nary line  seaward  three  marine  miles  from  each  cape 
of  bays  and  indents  of  the  coast,  joins  the  extremities 
of  those  two  lines  by  a  straight  line,  and  then  re- 
quires our  fishermen  to  keep  outside  of  this  connect- 
ing line.  Deluded  by  that  opinion,  the  British  Gov- 
ernment, indeed,  absurdly  undertook  to  exclude  us 
by  force  from  the  Bay  of  Fundy,  but  failed  to  main- 
tain its  pretension  in  that  respect. 

What  we  purchase  is  the  right  to  enter  and  fish  with- 
in the  three  marine  miles  of  the  sJiores  at  the  bottom 
^certain  hays^  Iiarhors,  and  creeks  (from  which  alone 
we  were  excluded  by  the  Treaty  of  1818),  disregard- 
ing wholly  the  opinion  of  the  Law  Officers  of  the 
Crown.  Looking  at  the  clause  under  consideration, 
in  this  its  only  proper  light,  it  is  plain  that  it  can 
not  impose  any  serious  charge  on  the  United  States. 


%\ 


COMMERCIAL  IXTEIICOUKSE  AND  TRxYNSPOKTATlON.    241 


CHAPTER   VI. 

COMMERCIAL  INTERCOURSE  AND  TRANSPOR- 

TATION. 

TREATY  TROVISIONS. 

^  SuxDRY  stipulations  of  tlie  Treaty  whicli  relate  to 
rights  of  navigation,  and  of  transport  hy  land  or  ^vater, 
—to  concessions  of  commercial  intercourse  and  trans- 
it—or to  the  free  interchange  of  olyects  of  produc- 
tion,—are  divisible  into,  first,  permanent  provisions, 
and,  secondly,  temporaiy  provisions. 

1.  Of  permanent  provisions  ^\e  have  the  following: 
M  Great  Britain  engages  that  ^he  •  navigation  of 
the  River  St.  Lawrence,  ascending  and  descending, 
from  the  i)oint  where  it  ceases  t6  form  the  boundaiy 
between  the  two  countries,  shall  forever  remain  free 
and  open  for  the  purpose  of  commerce  to  the  citizens 
of  the  United  States  [Art.  XXVI.]. 

The  United  States  engage  that  the  Rivers  Yul^on 
Porcupine,  and  Stikine,  in  Alaska,  ascending  an^l  de- 
scending from,  to,  and  into  the  sea,  sliall  forerer  re- 
mam  free  and  open  for  tlie  purpose  of  commerce  to 
the  subjects  of  Great  Britain  [Art.  XXVI.]. 

Rights  of  local  police  and  regulation  are*  reserved 
by  each  Government. 

[q  The  United  States  engage  that  the   subjects 

Q 


T 


242 


THE   TREATY   OF   WASIIIXGTOX. 


SJ 


li''  I 

iu 


III 


III 


of  Great  Bi'itain  sliall  enjoy  tlic  use  of  the  St.  Clair 
Flats'  Canal  on  terms  of  equality  witli  the  .inhabitants 
of  the  United  States  [Art.  XXVII.]. 

[(?]  The  United  States  engage  to  urge  on  the  State 
Governments,  and  Great  Britain  engages  to  urge  on 
the  Dominion  of  Canada,  to  secure  each  to  the  sub- 
jects or  citizens  of  the  other  the  use  on  equal  terms 
of  the  several  canals  connected  with  the  lakes  or  riv- 
ers traversed  by  or  contiguous  to  the  Ijoundary-line 
between  the  possessions  of  the  high  contracting  Par- 
ties [Art.  XXVII.]. 

All  these  are  provisions  which  bring  the  United 
States  and  the  Dominion  of  Canada  into  fixed  rela- 
tions independent  of  and  superior  to  all  questions  of 
Governments. 

2.  Of  temporary  provisions  we  have  the  following: 

\ci\  The  navigation  of  Lake  Michigan  is  declared 
free  and  open  for  the  pui'poses  of  commerce  to  the 
subjects  of  Great  Britain  [Art.  XXVIII.  ]. 

[U\  Goods,  waies,  and  merchandise  arriving  at  the 
ports  of  New  York,  Boston,  Portland,  or  such  other 
ports  as  the  President  may  designate,  and  destined 
for  the  British  possessions  in  Xorth  America,  may  be 
entered  at  the  propei  justom-house  without  payment 
of  duties  and  conveyed  in  transit  through  the  terri- 
tory of  tue  United  States  [Art.  XXIX.]. 

And,  in  like  manner,  goods,  wares,  and  merchandise 
arriving  at  any  of  the  ports  of  the  British  possessions 
in  Xorth  America,  and  destined  for  the  United  States, 
may  be  entered  at  the  proper  custom  -  house,  and 
conveyed  in  transit  without  the  payment  of  duties 


iK.T 


COMMERCIAL  INTERCOURSE  AND  TRANSPORTATION.    24:3 


i.  Clair 
3itants 

3  State 
ro-e  on 
lie  sub- 
l  terms 
or  riv- 
[iry-line 
ug  Par- 
United 
eel  rela- 
tions of 

lowing : 
leclared 
to  tlie 

at  the 
1  other 

llestined 
may  be 

payment 
.e  tcrri- 

:ihandise 
^sessions 
[1  States, 
lise,  and 
»f  duties 


through  the  said  possessions ;  and  goods,  wares,  and 
mercliandise  may  be  conveyed  in  transit  without  pay- 
ment of  duties,  from  the  United  States  through  the 
said  possessions  to  other  places  in  the  United  States, 
or  for  export  from  ports  in  the  said  possessions  [Art. 
XXIX.]. 

All  these  rights  of  transit  are,  of  course,  subject  to 
sucli  regulations  for  the  protection  of  the  revenue  as 
'  the  respective  Governments  may  prescribe. 

[c]  Great  Britain  engages  to  urge  on  the  Dominion 
of  Canada  and  the  Province  of  New  Brunswick  that 
no  export  duty  or  other  duty  shall  be  levied  on  tim- 
ber cut  in  that  part  of  the  American  territory  in  the 
State  of  Maine  watered  by  the  Kiver  St.  John  and  its 
tributaries,  and  floated  dowm  that  river  to  the  sea, 
W'hen  the  same  is  shipped  to  the  United  States  from 
the  Province  of  New  Brunswick. 

[<^/]  Subjects  of  Great  Britain  may  carry  in  British 
vessels,  without  payment  of  duty,  goods,  wares,  or 
merchandise  from  one  port  or  place  within  the  terri- 
tory of  tlie  United  States  u])on  the  St.  Lawrence,  the 
Great  Lakes,  and  the  rivers  connecting  the  same,  to 
another  port  or  place  within  the  territory  of  the 
United  States,  provided  that  a  portion  of  such  trans- 
portation is  made  through  the  Dominion  of  Canada 
by  land  carriage  and  in  bond  [Art.  XXX.]. 

Citizens  of  the  United  States  may  carry  in  L'nited 
States  vessels  goods,  wares,  or  merchandise  from  one 
port  or  i)lace  within  the  British  possessions  in  North 
America  to  anotlier  port  or  place  within  the  said 
possessions,  provided  that  a  portion  of  such  transpor- 


'-1 


f 


ri'fi 


2U 


THE  TREATY   OF  WASHINGTON. 


1 

p  j  ^ 

If:'- 

1 

'. 

\i 

If 

.;:_ , 

1 

i    i 
1    9 

! 


i 

■1 
1 

1 

j 
•1i 

tation  is  made  tliroiigli  the  territory  of  the  United 
States  by  land  carriage  and  in  bond  [Art.  XXX.]. 

The  United  States  engage  not  to  impose  any  export 
duties  on  goods,  wares,  or  merchandise  carried  under 
tliis  article  through  the  territory  of  the  United 
States;  and  Great  Britain  engages  to  urge  the  Do- 
minion of  Canada  and  the  other  British  Colonies  not 
to  impose  any  export  duty  on  goods,  wares,  or  mer- 
chandise carried  under  this  article. 

It  being  understood  that  these  resjiective  rights  of 
transit  are  to  be  regulated  by  the  two  Governments ; 
and  that  on  the  part  of  the  United  States  the  right 
of  transit  will  be  suspended  unless  the  Dominion  of 
Canada  should  establish  the  exemption  from  export 
duties  required,  and  unless  the  Dominion  shall  open 
its  canals  on  equal  terms  to  citizens  of  the  United 
States,  and  unless  the  Dominion  and  the  Province  of 
New  Brunswick  shall  free  from  all  duties  the  timber 
cut  on  the  St.  John  in  the  State  of  Maine  and  export- 
ed to  the  United  States  [Arts.  XXX.  and  XXXI.]. 

All  the  provisions  of  the  Treaty  from  Articles 
XVIII.  to  XXI.  inclusive,  and  Article  XXX., — that  is 
to  say,  the  articles  regarding  the  fisheries  and  recip- 
rocal right  of  transit, — are  to  take  eifect  so  soon  as  the 
laws  required  to  carry  them  into  operation  shall  have 
been  passed  by  the  Parliament  of  Great  Britain,  by 
that  of  Canada,  and  by  the  Legislature  of  Prince  Ed- 
ward's Island,  on  the  one  hand,  and  by  the  Congress 
of  the  United  States  on  the  other. 

Such  assent  having  been  given,  such  articles  shall 
remain  in  force  for  the  j^eriod  of  ten  years  from  the 


COMMERCIAL  INTERCOURSE  AND  TRANSPORTATION.    245 

(late  at  wliicli  tliey  may  come  into  operation,  and  fur- 
ther until  the  expiration  of  two  years  after  either  of 
the  Parties  shall  have  given  to  the  other  notice  of  its 
desire  to  terminate  the  same :  which  either  may  give 
at  the  end  of  the  said  ten  years  or  at  any  time  after- 
ward [Art.  XXXIII.]. 

Temporary  as  these  provisions  are,  or  at  least  ter- 
minaljle  at  the  will  of  either  Party,  they  are  equitable 
in  themselves,  and  advantageous  both  to  the  United 
States  and  the  Canadian  '  \3minion ;  and,  like  the 
permanent  provisions  of  the  Treaty  explained  in  this 
chapter,  they  tend  to  draw  the  two  countries  closer 
and  closer  toc^ether. 

The  germ  of  the  Treaty  of  Washington,  it  is  to  be 
remembered,  was  the  suggestion  of  the  British  Gov- 
ern ^lent  through  Sir  John  Hose,  a  former  Canadian 
Minister,  whose  j)i"oposal  related  only  to  pending 
questions  affecting  the  British  possessions  in  North 
America,  not  Great  Britain  herself. 

What  these  questions  were  we  partly  understand  by 
the  stipulations  of  the  Treaty,  the  whole  of  which,  ex- 
cept those  growing  out  of  incidents  of  the  late  Civil 
War,  are  of  interest  to  Canada,  including  the  maritime 
Provinces,  primarily  if  not  exclusively,  although  re- 
quiring to  be  treated  in  the  name  of  Great  Britain. 

To  the  arrangements  actually  made,  Canada  would 
have  preferred,  of  course,  revival  of  the  Elgin-Marcy 
Reciprocity  Treaty,  involving  the  admission  into  each 
country,  free  of  duty,  of  numerous  articles,  being  the 
growth  and  produce  of  the  British  Colonies  or  of  the 
United  States.     It  was  the  desire  of  Canada  to  have 


iiwi'wwM«^>Mw;!as?-;'gBtW-i).'.';;i-':^.i...«jn:: 


! 


i>- 1 


p;       ( 


d   . 


/ 


:;i 


tl  ■  I   I. 
fi'     i! 


St  '        ■! 


t 


i   I      I 


24G 


Till-:   TREATY   OF   -SVASIIINGTON. 


provision  made  for  allog(Kl  claims  on  account  of  the 
acts  of  the  Fenians.  But  the  United  States  would 
not  listen  to  either  of  these  propositions :  su  that  the 
Dominion  had  opportunity  to  allege  that  she  was 
sacrificed  to  the  Metropolis,  and  thus  to  o})tain,  Ly 
way  of  compensation,  the  guaranty  on  the  part  of  the 
Imperial  Government  of  a  large  loan  for  the  construc- 
tion of  the  proposed  trans-continental  railway  from 
the  Great  Lakes  to  the  Pacific  Ocean. 

In  some  respects,  the  arrangements  we  have  been 
considering  resemble  those  of  the  Keciprocity  Treaty ; 
but  they  are  much  more  comprehensive,  and  they  are 
better  in  other  respects. 

We  have  placed  the  question  of  the  fisheries  on  an 
independent  footing.  If  the  American  fisheries  are  of 
inferior  value  to  the  British, — which  w^e  do  not  con- 
cede,— then  ^Ye  are  to  pay  the  difference.  But  the 
fishery  question  is  no  moi'e  to  be  employed  l)y  the 
Dominion  of  Canada,  as  it  has  been  heretofore,  either 
as  a  menace  or  as  a  lure,  in  the  hope  of  thus  inducing 
the  United  States  to  revive  the  Eeciprocity  Treaty. 

Apart  from  other  new  provisions  in  the  Treaty  of 
Washington  of  less  moment,  there  is  the  all-important 
one,  stipulating  for  reciprocal  right  of  commercial 
transit  for  subjects  of  Great  Britain  through  the 
United  States,  and  for  citizens  of  the  United  States 
through  the  Dominion :  in  view  of  which  Sir  John 
Macdonald  has  no  cause  to  regret  his  participation 
in  the  negotiation  of  the  Treaty. 

Sir  Stafford  Northcote,  in  the  late  debate  on  the 
Queen's  speech,  repels  with  force  and  truth  the  sug- 


7' 


\ 


COMMERCIAL  INTERCOURSE  AND  TRANSrORTATION.    047 

gestion  of  Lord  Bury  that  the  Treaty  of  Washington 
is  Tinjust  to  Canada.  He  shows,  on  the  conti'ary,  that 
the  Treaty  is  beneficial  and  acceptable  to  tlie  Domin- 
ion, sjoecifying  particulars,  and  citing  the  ap])robatoiy 
votes  of  the  legislative  assemblies  of  the  Canadian 
and  maritime  Provinces. 

But  the  United  States  will  never. make  another 
treaty  of  recipi'ocal  free  importation,  without  includ- 
ing manufactures  and  various  other  objects  of  the 
production  of  the  United  States  not  comprehended  in 
the  schedule  of  the  Elgin -Marcy  Treaty.  In  fine, 
Canada  must  expect  nothing  of  this  nature  short  of  a 
true  zoUvereui  involving  serious  modifications  of  the 
commercial  relations  of  Canada  to  Great  Britain. 


*> 


RELATION  OF   THE   BRITISH   PROVINCES   TO   THE   UNITED 

STATES. 

-  The  Dominion  of  Canada  is  one  of  those  "  Posses- 
sions," as  they  are  entitled,  of  Great  Britain  in  Amer- 
ica, which,  like  Jamaica  and  other  West  India  Islands, 
have  ceased  to  be  of  any  economic  value  1;o  her  save 
as  markets, — ^vhich  in  that  respect  would  be  of  al- 
most as  much  value  to  her  in  a  state  of  independence, 
— which  she  has  invited  and  encouraged  to  assume 
the  forms  of  semi-independent  parliamentary  govern- 
ment,— which,  on  the  whole,  are  at  all  times  a  chai'ge 
to  her  rather  than  a  profit,  even  in  time  of  peace, — 
which  would  be  a  burden  and  a  source  of  embarrass- 
ment rather  than  a  force  in  time  of  war, — and  which, 
therefore,  she  has  come  to  regard,  not  with  complete 
carelessness  perhaps,  but  with  sentiments  of  kindli- 


t 


2-18 


THE   TKKATV   OK   WASHINGTON. 


I,! 


i  >  1 


ness  and  good-will,  ratlior  than  of  tlio  jealous  tciia- 
ciousness  of  sovereign  power.  When  the  Dominion 
shall  express  desire  to  put  on  the  dignity  of  a  sover- 
eign State,  she  ^vill  not  encounter  any  obstacles  on 
the  2")art  of  the  Metropolis. 

In  regard  to  the  Dominion  of  Canada,  as  to  the 
Colonies  of  Australasia,  the  power  of  the  Metropolis 
appears  there  chiefly  in  the  i)erson  of  the  Governor, 
and  in  the  occasional  annulment  of  laws  of  the  local 
legislatures  deemed  incom|)atible  with  those  of  the 
Empire.  On  the  other  hand,  the  Colonies,  which  have 
necessaiy  relations  of  their  own  with  neighboring 
Governments,  as  i^i  the  case  of  Canada  relatively 
to  the  United  States,  can  not  treat  thereon  them- 
selves, as  their  interests  require  they  should,  but 
must  act  through  the  intervention  of  the  Metropolis, 
which,  in  this  respect,  may  have  other  interests  of  its 
own  superior  and  perhaps  injurious  to  those  of  th« 
Colonies. 

Meanwhile  the  Dominion  has  now  to  provide  for 
the  cost  of  her  own  military  defense,  and  that,  not 
against  any  enemies  of  her  own,  but  against  possible 
enemies  of  the  Mother  Country.  The  complications 
of  Euro})ean  or  of  Asiatic  politics  may  thus  envelop 
the  Dominion  in  disaster,  for  causes  wholly  foreign  to 
her,  as  much  so  as  if  she  were  a  sovereiirn  State.  In 
such  an  e  'urgency,  the  Dominion  would  be  tempted 
to  assume  an  attitude  of  neutrality,  if  not  of  indepen- 
dence. 

All  these  considerations  show  how  slender  is  the 
tie  which  attaches  the  Dominion  to  Great  Britain. 


ii 


-T 


X 


COM^IKKCIAL  INTEIIC0UUS1-:  AND  TUANSl'OUTATIOX.    o^y 

The  entire  history  of  all  European  Colonics  in 
America  proves  that  the  sentiment  oi  nationality^  that 
is,  of  attachment  to  the  Mother  Country,  is  very  weak, 
and  readily  yields  2)lace  to  other  sentiments  of  am])i- 
tion,  interest,  or  passion,  so  as  to  produce  feelings  of 
hostility  between  the  inhabitants  of  the  Metropolis 
and  those  of  the  Colonies  more  intense  than  such  as 
'i^xist  between  either  of  them  and  the  inhabitants  of 
other  countries.  This  fact  is  particularly  remarkalde 
in  the  incidents  of  revcJution  in  Spanish  America,  ex- 
ample of  which  we  have  now  before  the  eyes  in  the 
insurrection  which  rages  in  Cuba.  But  the  same  fact 
a])pears  distinctly  in  the  past  history  of  British 
America.  And  there  is  no  reason  to  suppose  that 
the  sentiment  of  mere  loyalty,  that  is,  political  attach- 
ment to  the  Mother  Country,  is  any  more  strong  at 
present  in  the  Dominion  of  Canada  than  it  formerly 
was  in  the  British  Colonies  now  constituting  the 
United  States. 

M.  II.  Blerzy,  in  a  very  instructive  essay  on  the 
Colonies  of  the  British  Empire,  discussing  the  question 
whether  the  English  beyond  sea  are  likely  to  remain 
attached  to  England  l)y  recollectioi.  of  family  or  of 
country,  observes  with  great  truth  Jiat  "  the  very 
aptitude  for  colonization  of  Avhich  the  Endish  are 
so  proud  could  not  exist  without  implying  a  cer- 
tain insouciance  of  family  on  their  part  and  disdain 
of  their  native  "country." 

IIow  true  is  this  remark!  It  is  illustrated  ])y 
contrasting  the  devoted  attachment  of  the  French  to 
France,  who  in   our  day  send  so  fe\v  colonists   to 


e 


¥:■ 


I 


(    ! 


m    i    : 


du    ! 


250 


Till-:   THKATY  OK   WASHINGTON. 


America,  and  those  cliiefly  Bas([iie.s,  wliile  hundreds 
of  thousands  annually  e?uigrate  from  (ireat  Britain. 

Loyal  Canadians,  that  is,  h)yal  to  Great  Britain, 
must  of  necessity  take  into  account  this  fact,  which  is 
of  the  very  essence  of  British  colonization  in  Amer- 
ica. They  are  also  compelled  to  regard  another  se- 
rious fact  of  the  same  order  of  ideas,  namely,  the  con- 
tinual emigration  from  Canada  to  the  United  States, 
not  only  on  the  part  of  recent  immigrants  from  Great 
Britain,  hut, — which  is  more  noticeable  as  a  sign  of 
the  times, — the  emigration  of  old  Canadians,  natives 
of  the  soil,  in  spite  of  all  the  efforts  of  the  Govern- 
ment to  check  and  discourage  it. 

On  the  other  hand,  the  history  of  all  European  col- 
onization shows  that  a  time  comes  when  the  Mother 
Country  grows  more  or  less  indifferent  to  the  fate  of 
her  Colonies,  which  time  appears  to  have  arrived  in 
Great  Britain  as  respects  the  Dominion. 

When  Canada  complains  [w^ithoiit  cause]  that 
her  wishes  have  been  disregarded  and  her  interests 
prejudiced  by  the  stipulations  of  the  Treaty  of 
Washington,  the  great  organ  of  opinion  in  England 
replies: 

"From  this  day  forth  look  after  your  own  busi- 
ness yourselves :  you  are  big  enough,  you  are  strong 
enough,  you  are  intelligent  enough,  and,  if  there  were 
any  deficiency  in  either  of  these  points,  it  would  be 
supplied  by  the  education  of  self-reliance.  We*  are 
both  now  in  a  false  position,  and  the  time  has  ar- 
rived w^hen  w^e  should  be  relieved  from  it.  Tahe  "up 
your  freedom :  your  days  of  ajii^renticeship  are  over^ 


J. 


COMMERCIAL  INTERCOURSE  A'    )  TRANSPORT ATIOX.    05  ^ 

Instances  might  be  cited  of  the  expression  of  sim- 
ilar ideas  in  Parliament. 

Loyalists  in  Canada  must  remember  another  thinc^. 
Montes(|uieu,  with  the  singular  penetration  which 
distinguished  him,  perceives  that  England  imparts  to 
her  Colonies  "  La  forme  de  son  Government,"  by 
means  of  which  "on  verroit  se  former  de  grands  pen- 
pies  dans  les  forets  memes  (pfelle  enverroit  habiter." 
But  the  parliamentary  form  of  Government,  which 
has  cont'  ibuted  so  greatly  to  the  growth  and  strength 
of  British  Colonies,  gave  to  them  facilities  of  success- 
ful rebellion, — that  is,  of  separation  from  the  IVIetrop- 
olis, — which  no  other  form  of  government  could  im- 
part, and  the  absence  of  Avhich  in  Spanish  America 
[and  now  in  Cuba]  has  done  so  much  to  impede  and 
obstruct  their  separation  from  Spain.  We  had  ex- 
perience of  this  in  our  Revolution,  where  each  of  the 
Colonies  had  a  governmental  organization  so  com- 
plete that,  in  order  to  be  independent  de  facto,  it 
needed  only  to  shij?  off  the  British  Governor.  The 
same  fact  was  apparent  in  our  Secession  War,  as  M. 
de  Tocqueville  had  predicted.  And,  at  this  time,  the 
Dominion  of  Canada  needs  only  to  substitute  for  a 
British  Governor  one  of  her  own  choice  to  become 
a  sovereign  State  organized  as  completely  as  Great 
Britain  herself. 

There  is  another  class  of  considerations  of  great 
importance. 

War  between  the  United  States  and  Great  Britain 
is  now  a  contingency  almost  inadmissible  as  supposi- 
tion, and  so,  of  course,  is  war  between  the  United 


252 


TIIK   TIJEATY   OF  WASIlIXtiTON. 


fl", 

li! 


il 


I 


States  and  Canada,  a  possession  of  Oreat  Britain. 
Nevcrtlielcss,  th'j  cni)al)ility  of  a  countiy  to  main- 
tain itself  l)y  force,  if  need  be,  is  one  of  the  elements 
of  its  political  life,  and  therefore  can  not  l)e  over- 
looked in  cousiderini]:  the  condition  of  the  Dominion 
of  Canada. 

Tn  regard  to  Canada  the  incpiiry  is  the  more  impor- 
tant, seeing  that  military  force  depends  in  pai't  on 
geogra])hical  facts,  which,  in  her  case,  equally  as  to 
peace  or  war,  and  for  the  same  reasons,  place  her  at 
disadvanta2:e  on  the  side  of  the  United  States. 

The  British  possessions  in  North  America,  begin- 
ning with  Newfoundland  on  the  Atlantic  Ocean,  and 
ending  with  Queen  Charlotte's  Island  on  the  Pacific, 
extend  across  the  continent  in  its  broadest  jiart,  a 
distance  of  80°  of  longitude,  but  in  a  high  latitude, 
occupying  the  whole  of  the  country  north  of  the  ter- 
I'itory  of  the  United  States.  The  space  thus  described 
looks  large  on  th(»  map;  but  the  greater  part  of  it  is 
beyond  tlie  limit  -f  the  growth  of  trees,  and  nmcli  of 
the  residue  is  too  cold  to  constitute  a  chosen  residence 
for  Europeans. 

In  a  word,  the  Doi  union  stretches  along  thousands 
of  miles,  without  ca}>al)ility  of  extension  on  the  one 
side,  where  it  meets  the  frozen  north,  or  on  the  other, 
where  it  is  stopped  by  the  United  States.  As  a 
country,  it  resembles  a  mathematical  line,  having 
lenc-th  without  breadth. 

Meanwhile,  owing  to  their  internal  position,  their 
northern  latitude,  and  the  geographical  configuration 
of  the  whole  country,  the  t^vo  great  Provinces  of  On- 


COMMKIiCIAL  INTKRCOLT.SK  AND  TKAN.si'OUTATION.    050 

tario  and  Quebec  liavc  ^^  iccoss  to  the  sea  in  the  long 
■winter,  save  tlirougli  the  United  States. 

TI1U8,  if  it  be  possible  to  conceive  of  two  conntries, 
Avliicli  wonld  a])pear  to  be  naturally  destined  to  con- 
stitute one  Government,  they  are  tlu;  United  States 
and  the  British  Provinces,  to  the  s])ecial  advantage 
of  tlie  latter  rather  tlian  tlie  former. 

We  therefore  can  aifoi-d  to  Avait.  We  liave  nothing 
to  apprehend  from  the  Dominion  l\acific  llailway :  if 
constructed,  it  will  not  relieve  Ontario  and  Quebec 
from  their  tntnsit  dependence  on  the  United  States. 
We  \velcome  every  sign  of  i)rosperity  in  the  Domin- 
ion. With  the  natural  limitations  to  lier  growth,  and 
the  restricted  capacity  of  her  home  or  foreign  mar- 
kets, her  pi  ^perity  will  never  }je  sufficient  to  prevent 
her  landowners  and  her  merchants  from  looking  wist- 
fully toward  the  more  progressive  population  and  the 
more  capacious  markets  of  the  United  States.  Her 
conspicuous  public  men  may  be  sincerely  loyal  to  the 
Evitish  Crown ;  many  of  the  best  men  of  Massachu- 
setts, New  York,  and  Virginia  Tvere  so  at  the  opening 
of  the  American  Revolution ;  but  neither  in  French 
Canada,  nor  in  British  Canada,  nor  in  the  maritime 
Provinces,  do  any  forces  of  sentiment  or  of  interest 
exist  adequate  to  withstand  those  potent  natural  and ' 
moral  causes,  or  to  arrest  that  fjital  march  of  events, 
which  have  rendered  nearly  all  the  rest  of  America 
independent  of  Europe,  and  can  not  fail,  sooner  or 
later,  to  reach  the  same  consummation  in  the  Domin- 
ion of  Canada. 

The  spirit  of  independence  is  a  rising  tide,  in  Can- 


254 


THE   TREATY   OF   WASHINGTON. 


'  i 


m  'I 


i"  i 


ada  as  elsewhere  in  America,  wliieli  you  see  in  its  re- 
sults, if  not  in  its  progress.  It  is  V'^'c,  the  advancement 
of  the  sun  in  the  sky,  imperceptible  a^  movement,  but 
plain  as  to  stages  and  ultimate  destintiion.  It  is  not 
an  effect  actively  produced  by  the  United  States.  It 
is  an  event  which  we  would  not  precipitate  by  violence 
if  we  could,  and  which  we  scarcely  venture  to  say  we 
wish  for,  lest  in  so  doing  w^e  should  possibly  wound 
respectable  susceptibilities;  but  which  we  neverthe- 
less expect  to  hail  some  day  with  hearty  gratulation, 
as  an  event  auspicious  alike  to  the  Dominion  and  to 
the  United  States. 

If  Lord  Milton's  appreciation  of  the  course  of  events 
be  correct, — and  no  person  has  written  more  intelli- 
gently or  forcibly  on  the  Bntish  side  of  these  ques- 
tions than  he, — the  consummation  is  close  at  hand. 
Arguing  from  the  British  stand-2)oint  of  the  San  Juan 
Question,  he  says : 

"If  Groat  IJritaln  retains  the  Island  of  San  Juan  and  the 
smaller  islands  of  the  archi])elago  lying  west  of  the  compromise 
channel  pro])oscd  by  Lord  Kussell,  together  with  Patos  Island 
and  the  Sucia  group,  she  will  preserve  her  power  upon  the 
Pacific,  and  will  not  in  any  way  interfere  with  or  menace  the 
harbors  or  seas  which  appertain  to  the  United  States.  If,  on 
the  other  hand,  these  islands  should  become  United  States  ter- 
ritory, the  highway  from  the  British  possessions  on  the  main- 
land will  be  commanded  by,  and  be  at  the  mercy  of  that 
Power.    ... 

"Such  a  condition  of  affairs  must  inevitably  force  British 
Columbia  into  the  United  States  federation;  and  the  valuable 
district  of  the  Saskatchewan  .  .  .  must,  ex  liecessitate  rei,  fol- 
low the  fortunes  of  British  Columbia.  Canada,  excluded  from 
the  Pacific,  and  shut  in  on  two  sides  by  United  States  terri- 
tory, must  eventually  follow  the  same  course." 


M- 


CO.ArMERCIAL  INTERCOURSE  AXD  TRANSPORTATIOX.     255 

In  contemplation  of  these  results,  it  is  difficult  to 
see  Low  any  American  sliould  fail  on  reflection  to 
approve  the  Treaty  of  Washington. 

"Two  rival  Powers,"  says  PrC'vost  Paradol,  '^bnt  which  arc 
but  one  a^,  the  point  of  view  of  race,  of  language,  of  customs,  and 
oi  laws,  pretlomniate  on  this  planet  outside  of  Europe 
iJestniy  has  pronounced;  and  two  parts  of  the  world  at  least' 
America  and  Oceanica,  belong  without  remedy  to  the  British 
rac ...  i,ut  the  actual  ascendancy  of  that  race  is  but  a  feeble 
image  of  what  a  near  future  reserves  to  it." 

The  time  is  not  remote  when  the  United  States 
and  the  Dominion  of  Canada  will  be  associated  in 
these  gT'eat  destinies,  whether  in  close  alliance  or  in 
more  intimate  union,  it  matters  little:  when  "Amer- 
ica," like  "Italy,"  shall  cease  to  be  a  mere  geograph- 
ical denomination,  and  will  comprehend,  in  a  mighty 
and  proud  Republic,  the  whole  combined  Biltish 
race  of  North  America. 

But,  glorious  as  such  a  consummation  would  be,  I 
would  not  have  it  to  be  save  with  the  cordial  con- 
currence of  the  people  of  the  Dominion,  and  the  con- 
tented acquiescence  at  least  of  Great  Bi-itain.  There 
is  many  a  page  of  superlative  triumph  in  the  annals 
of  the  British  Isles,— that  England,  Scotland,  and  Ire- 
land of  which  we  in  the  New  World  once  were,— 
but  not  one  of  her  days  of  victory  can  equal  in  lustre 
that  of  the  day  when  Great  Britain,  not  less  proud 
of  us,  "  the  fairest  of  her  daughters,"  than  of  hei-self, 
shall  extend  the  right  hand  of  welcome  and  affection 
to  L'p? ted  AmevksL. 


i    J 


n 
u 

!  1 

ft 


.  k. 


f  n 


llf^ 


m  ■ 


111 


i  m 


APPENDIX. 


TREATY  BETWEEN  THE  UNITED  STATES 
AND  GREAT  BRITAIN. 

Concluded  Mat  8,  1871 ;  Ratifications  Exchanged  June  17,  1871; 
ritocLAiMED  July  4, 1871. 


BY  THE  PRESIDENT  OF  THE  UNITED  STATES  OF  AMERICA. 

A  PROCLAMATIOX. 

Whereas  a  Treaty,  between  tlie  United  States  of  America  and  Her  Majesty 
the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Irehxnd,  concerning  the 
settlement  of  all  causes  of  difference  between  the  two  countries,  was  concluded 
and  signed  at  Washington  by  the  High  Commissioners  and  I'lenipotentiaries 
of  the  respective  Governments  on  the  eighth  day  of  May  last ;  which  Treaty 
is,  word  for  word,  as  follows  : 

The  United  States  of  America  and  Her  Britannic  Majesty,  being  desirous  to 
provide  for  an  amicable  settlement  of  all  causes  of  difference  between  the  two 
countries,  have  for  that  purpose  appointed  their  respective  Plenipotentiaries,  that 
is  to  say:  the  President  of  the  United  States  luxs  appointed,  on  the  part  of  the 
United  States,  as  Commissioners  in  a  Joint  High  Commission  and  I'lenipoten- 
tiaries, Hamilton  Pish,  Secretary  of  State;  Robert  Camming  Schenck,  Envoy 
Extraordinary  and  Minister  Plenipotentiary  to  Great  Britain;  Samuel  Nelson, 
an  Associate  Justice  of  the  Supreme  Court  of  the  United  States ;  Ebcnczer 
Rockwood  Hoar,  of  Massachusetts  ;  and  George  Henry  Williams,  of  Oregon  ; 
and  Her  Britannic  Majesty,  on  her  part,  has  appointed  as  her  High  Commis- 
sioners niul  Plenipotentiaries,  the  Right  Honorable  George  Frederick  Samuel, 
Earl  de  Grey  and  Earl  of  Ripon,  Viscount  Goderich,  Baron  Grantham,  a  Bar- 
onet, a  Peer  of  the  United  Kingdom,  Lord  President  of  Her  IMajesty's  JVlost 
Honorable  Privy  Council,  Knight  of  the  Most  Noble  Order  of  the  Garter, 
etc.,  etc. ;  the  Right  Honorable  Sir  Stafford  Ileiiry  Northcote,  Baronet,  one  of 
Her  Majesty's  Most  Honorable  Privy  Council,  a  Member  of  I'arliament,  a  Com- 
panion of  the  Most  Honorable  Order  of  the  Bath,  etc., etc.;  Sir  Edward  Thorn- 

R 


-f 


258 


APPENDIX. 


it 


ll' 


i 


ton,  Knight  Commaniler  of  the  ^[ost  llonoiiilile  Order  of  the  "Biith,  Her  Majes- 
ty's Envoy  Extruortlinary  and  Minister  IMenipotentiary  to  tlie  United  States 
of  America ;  Sir  John  Akwandcr  Mat'donahl,  Knight  Commander  of  tiie  Most 
Honorable  Order  of  the  13atii,  a  member  of  Her  Majesty's  Privy  Council  for 
Canada,  and  Minister  of  Justice  and  Attorney-General  of  Her  Majesty's  Do- 
minion of  Canada ;  and  Mountague  Bernard,  Esijuire,  Chichelc  Professor  of  In- 
ternational Law  in  the  University  of  Oxford. 

And  the  said  I'lenipotcntiaries,  after  having  exchanged  their  full  powers,which 
were  found  to  be  in  due  and  proper  form,  have  agreed  to  and  concluded  the 
following  articles : 

Article  I. 

Whereas  differences  have  arisen  between  the  Government  of  the  United  States 
and  the  Government  of  Her  Britannic  Majesty,  and  still  exist,  growing  out  of 
the  acts  committed  by  the  several  vessels  which  have  given  rise  to  the  chums 
generically  known  as  the  '■'■  Alabama  Claims  :" 

And  whereas  Her  IJritannic  IMajesty  has  authorized  her  Higli  Commissioners 
and  Plenipotentiaries  to  express,  in  a  friendly  spirit,  the  regret  felt  by  Her  Maj- 
esty's Government  for  the  escape,  under  whatever  circumstances,  of  the  Ala- 
hama  and  other  vessels  from  British  ports,  and  for  the  depredations  conmiitted 
by  those  vessels : 

Now,  in  order  to  remove  and  adjust  all  complaints  and  claims  on  the  part 
of  the  United  States,  and  to  provide  for  the  speedy  settlement  of  such  claims, 
which  are  not  admitted  by  Her  Britannic  Majesty's  Government,  the  High  Con- 
tracting Parties  agree  that  all  the  said  claims,  growing  out  of  acts  committed 
by  the  aforesaid  vessels  and  generically  known  as  the  ^''Alabama  Claims,"  shall 
be  referred  to  a  Tribunal  of  Arbitration  to  be  composed  of  five  Arbitrators,  to  be 
appointed  in  the  following  manner,  that  is  to  say :  One  shall  be  named  by  the 
President  of  the  United  States  ,•  one  shall  be  named  by  Her  Britannic  Majesty; 
His  Majesty  the  King  of  Italy  shall  be  requested  to  name  one ;  the  President 
of  the  Swiss  Confederation  shall  be  requested  to  name  one  ;  and  His  Majesty  the 
Emperor  of  Brazil  shall  be  requested  to  name  one. 

In  case  of  the  death,  absence,  or  incajjacity  to  serve  of  any  or  eitlier  of  the 
said  Arbitrators,  or,  in  the  event  of  either  of  the  said  Arbitrators  omitting  or 
declining  or  ceasing  to  aci  as  such,  the  President  of  the  United  States,  or  Her 
Britannic  Majesty,  or  His  IMajesty  the  King  of  Italy,  or  the  President  of  the  Swiss 
Confederation,  or  His  Majesty  the  Emperor  of  Brazil,  as  the  case  may  be,  may 
forthwith  name  another  person  to  act  as  Arbitsator  in  the  place  and  stead  of 
the  Arbitrator  originally  named  by  such  Head  of  a  State. 

And  in  the  event  of  the  refusal  or  omission  for  two  months  after  receipt  of  the 
request  from  either  of  the  High  (Contracting  Parties  of  His  Majesty  the  King 
of  Italy,  or  the  President  of  the  Swiss  Confederation,  or  His  Majesty  the  Em- 
peror of  Brazil,  to  name  an  Arbitrator  either  to  fill  the  original  a])pointment  or 
in  the  place  of  one  who  may  have  died,  be  absent,  or  incapacitated,  or  who  may 


iii! 


THE  TREATY   OF  WASHINGTOX. 


259 


li,  irer  ]\raje.s- 
United  States 
r  of  tlie  Most 
y  Comicil  foi- 
Majesty's  I)o- 
ofcssor  of  lu- 

jiowers,  which 
:unchidcd  the 


Ciiited  States 
owing  out  of 
to  the  daims 

iinmissioncrs 
1)}'  Her  Maj- 
of  the  Alo- 
is committed 

on  tlie  part 
such  chiims, 
e  High  Con- 
s  committed 
hiims,"  sliall 
trators,  to  be 
amed  by  the 
lie  Majesty; 
le  President 

Majesty  the 

iither  of  the 
omitting  or 
ates,  or  Her 
of  the  Swiss 
nay  be,  may 
nd  stead  of 

iceipt  of  the 
y  the  King 
ty  the  Em- 
aiutment  or 
)r  who  may 


omit,  decline,  or  from  any  cause  cease  to  act  as  such  Arbitrator,  His  INIajesty 
the  King  of  Sweden  and  Norway  shall  be  requested  to  name  one  or  more  per- 
sons, as  the  case  may  be,  to  act  as  such  Arbitrator  or  Arbitrators. 

Akticle  II, 

The  Arbitrators  shall  meet  at  Geneva,  in  Switzerland,  at  the  earliest  conven- 
ient day  after  they  shall  have  been  named,  and  shall  proceed  impartially  and 
carefully  to  examine  and  decide  all  (piestions  that  shall  be  laid  before  them  on 
tlse  part  of  the  Governments  of  the  United  States  and  Ilcr  Britannic  IMajesty  re- 
spectively. All  ([uestions  considered  by  the  Tribunal,  including  the  tinal  award, 
shall  be  decided  by  a  majority  of  all  the  Arbitrators. 

Each  of  the  High  Contracting  Parties  shall  also  name  one  person  to  attend 
the  Tribunal  as  its  agent  to  represent  it  generally  in  all  matters  connected  with 
the  arbitration. 

Article  III. 
The  written  or  printed  case  of  each  of  the  two  Parties,  accompanied  by  the 
documents,  the  official  corresjiondence,  and  other  evidence  on  whit:h  each  relies, 
shall  be  delivered  in  duplicate  to  each  of  the  Arbitrators  and  to  the  agent  of 
the  other  Party  as  soon  as  may  be  after  the  organization  of  the  Tribunal,  but 
within  a  period  not  exceeding  six  months  from  the  date  of  the  exchange  of  the 
ratifications  of  this  Treaty. 

Article  IV. 

Within  four  months  after  the  delivery  on  both  sides  of  the  written  or  printed 
case,  either  Party  may,  in  like  manner,  deliver  in  dui)licate  to  each  of  the  said 
Arbitrators,  and  to  the  agent  of  the  other  Party,  a  counter-case,  and  additional 
documents,  correspondence,  and  evidence,  in  reply  to  the  case,  documents,  corre- 
spondence, and  evidence  so  presented  l)y  the  other  Party. 

The  Arbitrators  may,  however,  extend  the  time  for  delivering  such  counter- 
case,  documents,  correspondence,  and  evidence,  when,  in  their  judgment,  it  be- 
comes necessary,  in  consequence  of  the  distance  of  the  place  from  which  the  evi- 
dence  to  be  presented  is  to  be  procured. 

If  in  the  case  submitted  to  the  Arbitrators  either  Party  shall  have  specified 
or  alluded  to  any  report  or  document  in  its  own  exclusive  possession  without  an- 
nexing a  copy,  such  Party  shall  be  bound,  if  the  other  Party  thinks  proper  to 
apply  for  it,  to  furnish  that  Party  with  a  copy  thereof;  and  either  Party  may. 
call  upon  the  other,  through  the  Arbitrators,  to  produce  the  originals  or  certified 
copies  of  any  papers  adduced  as  evidence,  giving  in  each  instance  such  reason- 
able notice  as  the  Arbitrators  may  require. 

Article  V.  ""^  ~ 

It  shall  be  the  duty  of  the  agent  of  each  Party,  within  two  months  after  the 
expiration  of  the  time  limited  for  the  delivery  of  the  counter-case  on  botJi  sides, 


1 


2C0 


APPENDIX. 


)!      I 


to  deliver  in  duplicate  to  cacii  of  tlic  said  Arliitrators  and  to  the  agent  of  tlie 
other  party  a  written  or  printed  arf^Minient  showing  the  points  and  referring  to 
the  evidence  njujn  wliicii  liis  Government  relies  ;  and  the  Arbitrators  may,  if 
they  desire  further  elucidation  with  regard  to  any  point,  re(iuire  a  written  or 
printed  statement  or  argument,  or  oral  argument  l>y  counsel  upon  it ;  hut  in  such 
case  the  other  I'arty  sliall  be  cutitleil  to  reply  either  orally  or  in  writing,  as  the 
case  may  be. 

AlJTICI.E  VI. 

I'l  deciding  the  matters  submitted  to  the  Arbitrators,  they  shall  be  governed 
by  the  following  three  rules,  which  are  agreed  iii)on  by  the  High  Contracting 
Parties  as  rules  to  be  taken  as  api)licable  to  the  case,  and  by  such  ])rincii)les  of 
International  Law  not  inconsistent  therewith  as  the  Arbitrators  shall  determine 
to  have  been  applicable  to  the  case. 

RULES. 

A  neutral  Government  is  bound — 

First,  to  use  due  diligence  to  prevent  the  fitting  out,  arming,  or  cquipjjing, 
within  its  jurisdiction,  of  any  vessel  whiih  it  has  reasonable  ground  to  believe  is 
intended  to  cruise  or  to  carry  on  war  against  a  Power  with  which  it  is  at 
peace;  and  also  to  use  like  diligence  to  prevent  the  dci)artiire  fi-om  its  jurisdic- 
tion of  any  vessel  intended  to  cruise  or  carry  on  war  as  above,  such  vessel  hav- 
ing been  specially  adapted,  in  whole  or  in  jiart,  within  such  jurisdiction,  to  war- 
like use. 

Secondly,  not  to  permit  or  sutTor  cither  belligerent  to  make  use  of  its  ports  or 
waters  as  the  base  of  nav.-il  o]icratious  against  the  other,  or  for  the  purjjosc  of 
the  renewal  or  augmentation  of  military  sui)plies  or  arms,  or  the  recruitment  of 
men. 

Thirdly,  to  exercise  due  diligence  in  its  own  ports  and  waters,  and,  as  to  all 
persons  within  its  jurisdiction,  to  prevent  any  violation  of  the  foregoing  obliga- 
tions and  duties. 

Her  Britaimic  Majesty  has  commanded  her  High  Commissioners  and  Pleni- 
potentiaries to  declare  that  Her  Majesty's  Government  can  not  assent  to  the 
fo)-egoing  rules  as  a  statement  of  principles  of  International  Law  which  were 
in  force  at  the  time  when  the  claims  mentioned  in  Article  I.  arose ;  but  that 
Her  Majesty's  Government,  in  order  to  evince  its  desire  of  strengthening  the 
friendly  relations  between  the  two  countries  and  of  making  satisfactory  ])rovis- 
ion  for  the  future,  agrees  that,  in  deciding  the  questions  between  the  two  coim- 
tries  arising  out  of  those  claims,  the  Arbitrators  should  assume  that  Her  Maj- 
esty's Government  had  undertaken  to  act  ui)on  the  princii)les  set  forth  in  these 
rules. 

And  the  High  Contracting  Parties  agree  to  obser\'e  these  rules  as  between 
themselves  in  future,  and  to  bring  them  to  the  knowledge  of  other  maritime 
Powers,  and  to  invite  them  to  accede  to  them. 


THE   TREATY   OF   \yASIIIXGTON. 


201 


Ahticle  VII. 

The  decision  of  the  Tribunal  shall,  if  possible,  be  made  within  three  months 
liom  tlie  close  of  the  argument  on  both  sides. 

It  shall  be  made  in  writing  and  dated,  a.ul  shall  l,e  signed  by  the  Arbitrators 
who  may  assent  to  it. 

The  said  Tribunal  shall  first  determine  as  to  each  vessel  separately  whether 
(,rcat  l>ntain  has,  by  any  act  or  omission,  failed  to  fulfill  any  of  the  duties  set 
forth  m  the  foregoing  three  rules,  or  recognized  by  the  principles  of  Internation- 
al Law  not  inconsistent  with  such  rules,  and  shall  certify  such  fact  as  to  each 
of  the  said  vessels.  In  case  the  Tribunal  find  that  Great  Britain  has  failed  to 
hiHill  any  duty  or  duties  as  aforesaid,  it  may,  if  it  think  proper,  proceed  to  anard 
a  sum  in  gross  to  be  paid  by  Great  Britain  to  the  United  States  for  all  the 
claims  referred  to  it;  and  in  such  case  the  gross  sum  so  awarded  shall  be  paid 
ni  com  by  the  Government  of  Great  Britain  to  the  Government  of  the  United 
States,  at  Washington,  witiiin  twelve  months  after  the  date  of  the  award. 

The  award  shall  be  in  dni,licat,j,  one  copy  whereof  shall  be  delivered  to  the 
agent  of  the  United  States  fur  his  Government,  and  the  other  copy  shall  be  de- 
livered to  the  agent  of  Great  Britain  for  liis  Government. 


Article  VIII. 
Each  Government  shall  pay  its  own  agent,  and  provide  for  the  proper  remu- 
neration of  the  counsel  employed  by  it  and  of  the  Arbitrator  aj.pointcd  by  it,  and 
lor  the  expense  of  preparing  and  submitting  its  case  to  the  Tribunal.  All  other 
exi)enses  connected  with  the  arbitration  shall  be  defrayed  by  the  two  Govern- 
ments in  e(pial  moieties. 

Article  IX. 
^.iie  Arbitrators  shall  keep  an  accurate  record  of  their  proceedings,  and  may 
ai)pomt  and  employ  the  necessary  officers  to  assist  them. 

Article  X. 

In  case  the  Tribunal  finds  that  Great  Britain  has  failed  to  fulfill  any  duty  or 
duties  as  aforesaid,  and  does  not  award  a  sum  in  gross,  the  High  Contracting 
1  arties  agree  that  a  Board  of  Assessors  shall  be  appointed  to  ascertain  and  de- 
termine what  claims  are  valid,  and  what  amount  or  amounts  shall  be  paid  by 
Great  Britain  to  the  United  States  on  account  of  the  liability  arising  from 
suc'i  failure,  as  to  each  vessel,  according  to  the  extent  of  such  liability  as  de- 
cided by  the  Arbitrators, 

The  Board  of  Assessors  shall  be  constituted  as  follows  :  One  member  there- 
of shall  be  named  by  the  I'rcsident  of  the  United  States,  one  member  thereof 
shall  be  named  by  Her  Britannic  Majesty,  and  one  member  thereof  shall  be 


i 


h  ■ 


m 


202 


APPENDIX. 


;i 

:' 

» 

'    i 

■II 

nnincd  liy  tlic  Kcproscntative  at  "Washington  of  His  Mnjcsty  the  King  of  Italy  ; 
luul  in  ca.-e  of  a  vacancy  happening  from  any  cause,  it  sliall  be  filled  in  tlie 
same  manner  in  which  the  original  appointment  was  made. 

As  soon  as  possil)le  after  such  nominations  the  Uoanl  of  Assessors  shall  he 
organi/xnl  in  Washington,  witli  jiower  to  hokl  their  sittings  there,  or  in  New 
York,  or  in  Boston.  The  n)eml)ers  thereof  shall  severally  suhserilie  a  solemn 
declaration  that  they  will  impartially  and  carefnlly  examine  and  decide,  to  the 
best  of  their  jndgment  and  according  to  justice  and  etjuity,  all  matters  submit- 
ted to  them,  and  shall  forthwith  jiroceed,  nnder  sucii  rules  and  regulations  as 
they  may  jircscriljc,  to  the  investigation  of  the  claims  which  shall  be  i)resented 
to  them  ity  the  Government  of  the  United  States,  and  shall  examine  and  de- 
cide njion  them  in  such  order  and  manner  as  they  may  think  proper,  but  npon 
such  evidence  or  information  only  as  shall  be  furnished  by  or  on  behalf  of  tlie 
Goverimients  of  the  United  States  and  of  (Jreat  IJritain  resi)ectively.  They 
shall  be  bound  to  hear  on  each  separate  claim,  if  recjuired,  one  person  on  lie- 
half  of  each  (lovernment,  as  counsel  or  agent.  A  majority  of  the  Assessors  in 
each  case  shall  be  sutlicient  for  a  decision. 

The  decision  of  the  Assessors  shall  be  given  upon  eacli  claim  in  writing,  and 
shall  be  signed  by  them  respectively  and  dated. 

Every  claim  shall  be  presented  to  the  Assessors  within  six  months  from  the 
day  of  their  first  meeting  ;  i,iit  they  may,  for  good  cause  shown,  extend  the  time 
for  the  presentation  of  any  claim  to  a  fiu'ther  jieriod  not  excectling  three  months. 

The  Assessors  shall  report  to  each  Government  at  or  before  the  expiration 
of  one  year  from  the  date  of  their  first  meeting  the  am(;imt  of  claims  decided 
by  them  nj)  to  the  date  of  such  report ;  if  further  claims  then  remain  undecided, 
they  shall  make  a  further  rejjort  at  or  before  the  expiration  of  two  years  from 
the  date  of  such  first  meeting;  and  in  case  any  claims  remain  undetermined  at 
tliat  time,  they  shall  make  a  final  report  within  a  further  period  of  six  months. 

The  report  or  re])orts  shall  be  made  in  duplicate,  and  one  copy  thereof  shall 
be  delivered  to  the  Secretary  of  State  of  the  United  States,  and  one  copy  there- 
of to  the  Representative  of  Her  Britannic  INIajesty  at  Washington. 

All  sums  of  money  which  may  be  awarded  under  this  article  shall  bo  payable 
at  Washington,  in  coin,  within  twelve  months  after  the  delivery  of  each  report. 

The  Board  of  Assessors  may  employ  such  clerks  as  they  shall  think  r.eces- 
sary. 

The  expenses  of  the  Board  of  Assessors  shall  be  borne  equally  by  the  two 
Governments,  and  paid  from  time  to  time,  as  may  he  found  exj)edient,  on  the 
production  of  accounts  certified  by  the  Board.  The  remuneration  of  the  As- 
sessors shall  also  be  paid  by  the  two  Governments  in  equal  moieties  in  a  simi- 
lar manner. 

Article  XI. 
The  High  Contracting  Parties  engage  to  consider  the  result  of  the  proceed- 
ings of  the  Tribuiuil  of  Arbitration  and  of  the  Board  of  Assessors,  should  such 


y  of  Italy ; 
led  in  the 

rs  sliall  lie 
or  in  New 
!  a  solemn 
;itlc,  to  the 
•rs  snbinit- 
ulations  as 
J  presented 
lie  and  de- 
1-,  lint  ujion 
;half  of  tlie 
ely.  'I'liey 
rson  on  hc- 
^sscssors  in 

viitinj,',  and 

lis  from  the 

Mid  the  time 

roe  months. 

expiration 

ms  deeidcd 

undecided, 

ears  from 

termincd  at 

months. 

icreof  shall 

cojiy  there- 

)G  payahle 
ach  report, 
link  r.eccs- 

)y  the  two 
ent,  on  the 
of  the  As- 
in  a  simi- 


le proceed- 
hould  such 


Till':   TliEiVTY   OF   WASIllNG'lUN. 


203 


Hoard  ho  appointed,  as  n  full,  perfect,  and  final  .settlement  of  all  the  claims 
liercinliffore  referred  to;  and  further  ciit,'af,'c  that  every  such  claim,  whether 
the  same  may  or  nniy  not  have  heen  presented  to  the  notice  of,  made,  juefer- 
red,  or  laid  hefore  the  Trihnnal  or  Hoard,  shall,  from  and  after  the  conclusion 
of  the  proccedip},'s  of  the  Trihunal  or  Hoard,  he  considered  and  treated  as  fi- 
nally .settled,  barred,  and  thenceforth  inadinissihle. 


Articlk  XII, 

The  IIIkIi  Contractinfif  Parties  ajjjiTC  that  all  claims  nn  the  part  of  corpora- 
tions, com])aiiies,  or  jirivate  individuals,  citizens  of  the  United  folates,  uixm  the 
(jiovernment  of  Her  Hritannie  Majesty,  arising  out  of  acts  committed  against 
the  persons  or  jiropcrty  of  citizens  of  the  United  States  during  the  perioil  he- 
tween  t'lC  tiiirteenth  of  April,  eighteen  hundred  and  sixty-one,  and  the  ninth 
of  Aprd,  ei:;hteen  hundred  and  sixty-live,  inclusive,  ncjt  heing  claims  growing 
out  of  the  acts  of  the  vessels  referred  to  in  Article  I.  of  this  Treaty,  and  all 
claims,  witii  the  like  exception,  on  the  part  of  corporations,  comjianies,  or  pri- 
vate individuals,  snhjects  of  Her  Britannic  Majesty,  njion  the  Government  of 
the  United  States,  arising  out  of  acts  committed  against  the  persons  or  proji- 
crty  of  subjects  of  Her  Hritaiinie  Majesty  during  the  same  peri(jd,  which  may 
have  been  jiresented  to  either  Government  fin-  its  inteqiosition  with  the  other, 
and  which  yet  remain  unsettled,  as  well  as  any  other  smh  claims  which  may  he 
presented  within  the  time  specified  in  Article  XIV.  of  this  Treaty,  shall  be  re- 
ferred to  three  rommissioners,  to  be  ajipointed  in  the  following  manner,  that  is 
to  say:  One  Commissioner  shall  be  named  by  the  Trcsident  of  the  United 
States,  one  by  Her  Britannic  Majesty,  and  a  third  by  the  I'rcsident  of  the 
United  States  and  Her  Britannic  ]\Iajesty  conjointly;  and  in  case  the  third 
Commissioner  shall  not  have  been  so  named  witiiin  a  period  of  three  months 
from  the  date  of  the  exchange  of  the  ratifications  of  this  Treaty,  then  the 
third  Commissioner  shall  be  namcil  by  the  Kopresentative  at  Washington 
of  Ilis  Majesty  tlie  King  of  Spain.  In  case  of  the  death,  absence,  or  inca- 
pacity of  any  Commissioner,  or  in  the  event  of  any  Commissioner  omitting 
or  ceasing  to  act,  the  vacancy  shall  be  filled  in  the  manner  hereinbefore  pro- 
vided for  making  the  original  appointment ;  the  period  of  three  months  in  case 
of  such  substitution  being  calculated  from  the  date  of  the  happening  of  the 
vacancy. 

The  Commissioners  so  named  shall  meet  at  Washington  at  the  earliest  con- 
venient jieriod  after  they  have  been  respectively  named ;  and  shall,  before  pro- 
ceeding to  any  business,  make  and  subscribe  a  solemn  declaration  that  they 
will  impartially  and  carefully  examine  and  decide,  to  the  best  of  their  judgment, 
and  according  to  justice  and  equity,  all  such  claims  as  shall  be  laid  before  them 
on  the  part  of  the  Governments  of  the  United  States  and  of  Her  Britannic  Maj- 
esty, respectively  ;  and  such  declaration  shall  be  entered  on  the  record  of  their 
proceedings. 


I 


r--  ■ : 


2C4 


ArrENDix. 


AnTin.r.  XIIT. 

The  Commiss'ioners  slinll  tlieii  ioriliwitli  ]in)cec(l  fo  the  invest ifijaf ion  of  the 
claims  whicli  shall  be  i)reseiiteil  to  them.  Tliey  siiall  iuveslijate  and  decide 
siuli  ciaiins  in  such  order  and  sudi  manner  as  they  may  think  projjcr,  Init  upon 
such  evidence  or  information  only  as  shall  he  furnished  by  or  on  lieiialf  of  the 
respective  Governments.  They  shall  he  hound  to  receive  and  consider  all  writ- 
ten documents  or  statements  wliicii  may  he  presented  to  them  liy  or  on  hchalf 
of  the  resjiective  Governments  in  sui)i)ort  of,  or  in  answer  to,  any  claim,  and  to 
hear,  if  required,  one  jjcrson  on  each  side,  on  behalf  of  each  CJovermnent,  as 
counsel  or  agent  for  such  Government,  on  each  and  every  separate  claim.  A 
majority  of  the  C'imimissioners  shall  be  sufTicicnt  for  an  award  in  each  case. 
Tiie  award  shall  be  given  ui)on  each  claim  in  writing,  and  shall  1)C  signed  l)y 
the  Commissioners  assenting  to  it.  It  shall  be  comj)etent  for  each  Government 
to  name  one  person  to  attend  the  Commissioners  as  its  agent,  to  present  and 
support  claims  on  its  behalf,  and  to  answer  claims  made  upon  it,  and  to  re])re- 
sent  it  generally  in  all  matters  connected  with  the  investigation  and  decision 
thereof. 

The  High  Contracting  Parties  hereby  engage  to  consider  the  decision  of  the 
Commissioners  as  al)Sohitely  finid  and  conclusive  upon  each  claim  decided  npon 
by  them,  and  to  give  full  etl'ect  to  such  decisions  without  any  objection,  eva- 
sion, or  delay  whatsoever. 

Article  XIV. 

Every  claim  shall  he  presented  to  the  Commissioners  within  six  months  from 
the  day  of  their  first  meeting,  unless  in  any  case  where  reasons  for  delay  shall 
be  established  to  the  satisfaction  of  the  Commissioners,  and  then,  and  in  any 
such  case,  the  period  for  presenting  the  claim  may  be  extended  by  them  to  any 
time  not  exceeding  three  months  longer. 

The  Commissioners  shall  be  bound  to  examine  and  decide  upon  every  claim 
within  two  years  from  the  day  of  their  first  meeting.  It  shall  be  competent 
for  the  Commissioners  to  decide  in  each  case  whether  any  claim  has  or  has  not 
been  duly  made,  preferred,  and  laid  before  them,  cither  wholly  or  to  any  and 
what  extent,  according  to  the  true  intent  and  meaning  of  this  Treaty. 

Article  XV. 

All  sums  of  money  which  may  be  awarded  by  the  Commissioners  on  account 
of  any  claim  shall  be  paid  by  the  one  Government  to  the  other,  as  the  case  may 
be,  within  twelve  months  after  the  date  of  the  final  award,  without  interest,  and 
without  any  deduction  saA'e  as  specified  in  .Article  XVI.  of  this  Treaty. 

Article  XVI. 

The  Commissioners  shall  keep  an  accurate  record  and  correct  minutes  or 
notes  of  all  their  proceedings,  with  the  dates  thereof,  and  may  appoint  and  cm- 


■i4MMtoii«i4>a 


THE  TIJKATY   OF   WASHINGTON. 


fition  of  the 
iitid  decide 
■r,  hut  upon 
ehnir  of  tho 
Jcr  all  writ- 
r  on  liclialf 
turn,  and  to 
uiiiinient,  ns 
I  daini.  A 
eaeh  case. 
Q  signed  hy 
ioveriunent 
present  and 
id  to  rei)re- 
nd  decision 

ision  of  the 
3cided  upon 
jction,  cva- 


lonths  from 
dchiy  shall 
[Hid  in  any 
lem  to  any 

ivery  claim 
competent 
or  has  not 
o  any  and 


on  aceoimt 

B  case  may 
terest,  and 


niniitcs  or 
It  and  cm- 


205 

ploy  a  secretary,  and  any  other  necessary  officer  or  offic-ers.  to  assist  then,  in 
the  transaction  of  ,he  hnsiness  which  may  oon.e  hefore  them 

K«ch  Governnu-nt  shall  pay  its  own  Commissi  km-  and  agent  or  co„n<el 
AI  other  expenses  shall  he  defrayed  hy  the  two  Governments  in  e,„al  n.oieties 

1  he  whole  expenses  of  the  Com.nis.sion,  inchuiing  contingent  exj.enses,  shall 
he  detrayed  hy  a  ratahle  deduction  on  the  amount  of  the  sums  awanled  hv  the 
Com,„,s,,oners,  provided  always  that  such  deduction  shall  nut  exceed  thj  rate 
of  five  i)er  cent,  on  the  sums  so  awarded. 

Ahticlk  xvir. 

The  High  Contracting  Parties  engage  to  consider  the  result  of  the  proceed- 
ings of  tins  (  onnnission  as  a  full,  perfect,  and  final  settlement  of  all  such  claims 
as  are  mentioned  in  Article  XH.  of  this  Treaty  upon  either  (Government  ;  and 
fmther  engage  that  every  su..h  claim,  whether  or  not  the  same  mav  have  heen 
presented  to  the  notice  of,  made,  preferred,  or  hud  hefore  the  said  Commission, 
shall,  from  and  after  the  conclusion  of  the  proceedings  of  the  said  Commission 
l^^^considered  and  treated  as  finally  settled,  harred,  and  thenceforth  inadiuis- 

AuTici-E  xviir. 

It  is  agreed  hy  the  High  Contracting  ]'urties  that,  in  addition  to  the  lihertv 
secured  to  the  United  States  fishermen  hy  the  Convention  hetween  tiie  United 
states  and  Great  Britain,  signed  at  London  on  the  L'Oth  day  of  Octoher   ISIH 
of  taking,  curing,  and  drying  fish  on  certain  coasts  of  the  British  North  Amer- 
ican CVjlonies  therein  defined,  the  inhahitants  of  the  United  States  shall  hnve 
in  common  with  the  suhjects  of  Her  Uritannic  .Afajestv,  the  lihertv,  fur  the  term 
of  years  mentioned  in  Article  XXXIII.  of  this  Treaty,  to  take'  fish  of  every 
kind,  except  shell-fish,  on  the  sea-coasts  and  shores,  and  in  the  hays,  harhors 
and  creeks,  of  the  Provi^ices  of  Quehec,  Nova  Scotia,  and  New  Brunswick  and 
the  Colony  of  I'rince  Edward's  Island,  and  of  the  several  islands  thereunto  ad- 
jacent, without  heing  restricted  to  any  distance  from  the  shore,  with  jiermission 
to  land  upon  the  said  coasts  and  shores  and  islands,  and  also  upon  the  Magda- 
len Islands,  for  the  purpose  of  drying  their  nets  and  curing  their  fish  ;  provided 
that,  in  so  doing,  they  do  not  interfere  with  the  rights  of  private  property,  or 
with  British  fishermen  in  the  peaceable  use  of  any  part  of  the  said  c.jasts*  in 
their  occupancy  for  the  same  jiurpose. 

It  is  understood  that  the  above-mentioned  liberty  applies  solelv  to  ihe  sea 
fishery,  and  that  the  salmon  and  shad  fisheries,  and  all  other  fisheries  in  rivers 
and  the  mouths  of  rivers,  are  hereby  reserved  exclusively  for  British  fishermen. 

Article  XIX.  

It  is  agreed  hy  the  High  Contracting  Parties  that  British  suhjects  shall  have, 
in  common  with  the  citizens  of  the  United  States,  the  liberty,  for  the  term  of 


i  II 

'     !l 


2G0 


ArrKXDix. 


ycnts  montioncil  in  Article  XXXIII.  of  this  Treaty,  to  fiiko  fish  of  every  kind, 
except  shi'll-lisli,  on  tlio  eastern  sen-coasts  and  shores  of  the  United  States 
nortli  of  tlie  tliirty-niiith  jianillel  of  north  latitude,  andr)ii  the  shores  of  tlie  sev- 
eral isianil.-i  tiicreunto  ailjaccnt,  and  in  tlie  hays,  harhors,  and  creeks  of  the 
said  sea-coasts  and  shores  of  the  United  States  and  of  the  saitl  islands,  withont 
being  restricted  to  any  distance  from  tlie  shore,  with  i)erniission  to  land  n|)()ii 
the  said  coasts  of  the  United  States  and  of  the  islands  aforesaid,  for  the  ]iin'- 
jtose  of  ilryin}^  their  nets  and  curing'  their  fish  ;  provided  that,  in  so  »loin},',  they 
do  not  interfere  with  the  rights  of  private  property,  or  with  the  lishernien  of  the 
United  States  in  the  peaceable  use  of  any  j)nrt  of  the  said  coasts  in  their  occn- 
j)ancy  for  the  same  jiiui)oso. 

It  is  iniderstood  that  the  above-mentioned  liberty  applies  solely  to  the  sea 
fishery,  and  that  sahno'i  and  shad  (isherio,  and  a'l  other  fisheries  in  rivers  and 
months  of  rivers,  are  hereby  reserved  exclusively  for  fishermen  of  the  United 
States. 

Article  XX. 
It  is  agreed  that  the  places  designated  by  the  Commissioners  appointed  un- 
der the  First  Article  of  the  Treaty  between  the  United  States  and  Gre  ,  Britain, 
concluded  at  Washington  on  the  oth  of  June,  1S")4,  upon  the  coasts  of  Her  Bri- 
tannic j\I:ije.!ty's  Doniinions  and  the  United  States,  as  places  reserved  from  the 
common  right  of  fishing  under  that  Treaty,  shall  be  regarded  as  in  like  manner 
reserved  from  the  common  right  of  fishing  under  the  preceding  articles.  In 
case  any  (piestion  should  arise  between  the  (jovernments  of  the  United  States 
and  of  Her  Britannic  INIajesty  as  to  the  common  right  of  fishing  in  places  not 
thus  designated  as  reservetl,  it  is  agreed  that  a  Commission  shall  be  ajipointed 
to  designate  such  places,  and  slmll  be  constituted  in  the  same  manner,  and  have 
the  same  powers,  duties,  and  authority  as  the  Commission  appointed  under  the 
said  First  Article  of  the  Treaty  of  the  ."ith  of  June,  1854. 


Article  XXI. 

It  is  agreed  that,  for  the  term  of  years  mentioned  in  Article  XXXIII.  of  this 
Treaty,  tisii-oil  and  fish  of  all  kinds  [except  fish  of  the  inland  lakes,  and  of  the 
rivers  falling  into  them,  and  except  fish  jjreserved  in  oil],  being  the  produce  of 
the  fisheries  of  the  United  States,  or  of  the  Dominion  of  Canada,  or  of  Prince 
Edward's  Island,  shall  be  admitted  into  each  country,  respectively,  free  of  duty. 


Article  XXII. 

Inasmuch  as  it  is  asserted  by  the  Government  of  Her  Britannic  IMajesty  that 
the  privileges  accorded  to  the  citizens  of  the  United  States  under  Article  XVIII. 
of  this  Treaty  arc  of  greater  value  than  those  accorded  by  Articles  XIX.  and 
XXI.  of  this  Treaty  to  the  subjects  of  ller  Britannic  Majesty,  and  this  assertion 


THE   TKKATV   ()K   WAS11L\GT(JX. 


f  cvory  kind, 
Jiiited  Suites 
es  of  the  sev- 
•rci'ks  of  the 
iiiils,  witliuut 
to  land  upon 
for  the  piir- 
1)  diting,  tlicy 
crmcii  of  t  lie 
II  their  occu- 

ly  to  the  sea 
in  rivers  and 
r  the  United 


ipointed  un- 
re  Jritain, 
of  Her  Bri- 
■'-m1  from  tlie 
like  manner 
irtii'les.  In 
nitcd  States 
II  jihices  not 
e  apixanted 
;r,  and  have 
d  under  the 


i><;7 


:ill.  of  this 
,  and  of  tiie 
prod nee  of 
r  of  Prince 
ee  of  dutv. 


'ajesty  that 

Ae  xVlII. 

XIX.  and 

s  assertion 


in  not  admitted  l.y  the  Cvernment  of  the  United  States,  it  is  further  agreed 
that  Commissioners  siial!  he  appointe.!  to  (U'termine,  having  regard  to  tlie  privi- 
leges accorded  l.y  the  United  States  to  the  snhje.ts  of  Her  IJritannic  Majestv  as 
stated  in  Articles  XIX.  and  XXI.  of  this  Treaty,  the  amotmt  of  any  conipe'n'sa- 
ti.m  which,  in  their  opinion,  onglit  to  he  jmid  hy  the  Government  of  tlie  United 
States  to  tiie  (Jovernment  of  Her  Hritamiic  .Majesty  in  return  for  the  privileges 
accorded  to  the  citizens  of  the  United  States  under  Article  XVIII.  of  this 
Treaty;  and  that  any  sum  of  money  which  the  said  Commissioners  may  so 
award  shall  l.e  paid  hy  tlie  United  States  (Jovernment,  in  a  gross  sum,  wiUiin 
twelve  months  after  such  award  shall  have  heen  given. 


Articlr  XXIII. 
The  Commissioners  referred  to  in  the  preceding  article  shall  he  appointed  in 
the  following  maimer,  that  is  to  say  :  (Jne  Commissioner  shall  he  name.l  hy  the 
President  of  the  United  States,  one  hy  Her  IJritamiic  Majesty,  and  a  third  l.y 
the  President  of  the  United  States  and  Her  JJritannic  Majesty  conjointly;  and 
in  case  the  third  Commissi..ner  shall  n..t  have  been  so  named  within  a  period 
of  three  months  from  the  date  when  this  article  shall  take  etfcct,  then  the  third 
Commi.s.sioner  shall  be  named  by  the  Representative  at  London  of  His  Majesty 
the  Emperor  of  Austria  and  King  of  Hungary.     In  case  of  the  death,  absence, 
or  incapacity  of  any  Commissioner,  or  in  the  event  of  any  Commissioner  omittin- 
or  ceasing  to  act,  the  vacancy  shall  be  filled  in  the  manner  hereinbefore  pro- 
vided for  making  the  original  appointment,  the  j.eriod  of  three  months  in  case  of 
such  substitution  being  calculated  from  the  date  of  the  happening  of  the  vacancy. 
The  Commissioners  so  named  shall  meet  in  the  City  of  Ilalifa.x,  in  the  I'rov- 
ince  of  Nova  Scotia,  at  the  earliest  convenient  period  after  they  Inne  been  re- 
spectively named,  and  shall,  before  proceeding  to  any  business,  make  and  sub- 
scribe  a  solemn  declaration  that  they  will  impartially  and  carefullv  e.xamine 
and  decide  the  matters  referred  to  them  to  the  best  of  their  judgment,  and  ac- 
cording to  justice  and  equity ;  and  such  declaration  shall  be  entered  on  the 
record  of  their  j.roceedings. 

Each  of  the  Iligli  Contracting  Parties  shall  also  name  one  person  to  attend 
the  Commission  as  its  agent,  to  represent  it  generally  in  all  matters  connected 
with  the  Commission. 

Article  XXIV. 
The  proceedings  shall  be  conducted  in  such  order  as  the  Commissioners  ap- 
pointed under  Articles  XXII.  and  XXIII.  of  this  Treaty  shall  determine.  They 
shall  be  bound  to  receive  such  oral  or  written  testimony  as  either  Government 
may  present.  If  either  Party  shall  offer  oral  testimony,  the  other  Party  shall 
have  the  right  of  cross-examination,  under  such  rules  as  the  Commissioners 
shall  prescribe. 

If  in  the  case  submitted  to  the  Commissioners  either  Party  shall  have  speci- 


I 


-i.__ 


2G8 


APPEXDIX. 


ficd  or  alliiiled  to  any  report  or  document  in  its  own  exclusive  possession,  with- 
out annexing  a  copy,  such  Party  shall  be  l»ound,  if  the  other  Tarty  thinks  prop, 
er  to  apply  for  it,  to  fiiniisli  that  Tarty  with  a  copy  thcreuf ;  and  either  3'arry 
may  call  uj)on  the  othf"'  through  the  C^Jmnli.SJ;i()uers,  to  produce  the  originals 
or  certified  copies  of  any  pajiers  adduced  as  evidence,  giving  in  each  instance 
such  reasonable  notice  as  the  Commissioners  may  rc(juire. 

The  case  on  either  side  shall  be  closed  within  a  jieriod  of  six  months  from 
the  date  of  the  organization  of  the  Connnission,  anil  the  Commissioners  shall 
be  recjuested  m  give  their  award  as  soon  as  possible  thereafter.  The  aforesaid 
period  of  six  months  may  be  extended  for  three  months  in  case  of  a  vacancy  oc- 
curring among  the  Commissioners  under  the  circumst  inces  contemjilated  in 
Article  XXIII,  of  this  Treaty. 

Articmo  XXV. 

The  Commissioners  shall  kef.})  an  accurate  '"ccord  and  correct  minutes  or 
notes  of  all  their  proceedings,  with  the  dates  thereof,  and  nay  apj)oiiit  and  em- 
l)loy  a  secretary,  and  any  other  necessary  ollicer  or  oflicers,  to  assist  them  in  the 
transaction  of  the  business  which  may  come  before  them. 

Each  of  the  IIij;h  Contracting  Parties  shall  j»ay  its  own  Commissioner  and 
agent  or  counsel ;  all  other  expenses  shall  be  defrayed  by  the  two  Governments 
in  equal  moieties, 

Artici.k  XXVI. 

The  navigation  of  the  River  St.  Lawrence,  ascending  and  descending,  from 
the  forty-fifth  parallel  of  north  latitude,  where  it  ceases  to  form  the  bount'ary 
between  the  two  countries,  from,  to,  and  into  the  sea,  shall  forever  remain  free 
and  open  for  the  purposes  of  commerce  to  the  citizens  of  the  United  States,  sub- 
ject to  any  lav.s  and  regulations  of  Great  Britain,  or  of  the  Dominion  of  Canada, 
not  inconsistent  with  such  privilege  of  free  navigation. 

The  navigation  of  the  Kivers  Yukon,  I'orcupine,  and  Stikine,  ascending  and 
descending,  from,  to,  and  into  the  sea,  shall  forever  rcmam  free  and  ojien  for  the 
purposes  of  commerce  to  the  subjects  of  Her  Britannic  IMajesty  and  to  the  cit- 
izens of  the  United  States,  suhject  to  any  laws  and  regulations  of  either  coimtry 
within  its  own  territorv  not  inconsistent  with  such  privilege  of  free  navigation. 


Article  XXVII. 
The  Govermnent  of  llcr  Britannic  Majesty  engages  to  iTge  upon  the  Govern- 
ment of  the  Dominion  of  Canada  to  secure  to  the  citizens  of  the  United  States 
the  use  of  Mie  Welland,  St.  Lawrence,  and  other  canals  in  the  Dominion  on  teiTns 
of  ecftia''  _v  with  the  iidiabitants  of  the  Dominion  ;  and  tlie  Government  u(  the 
United  States  engages  that  the  subjects  of  Her  Britannic  Majesty  shall  enjoy 
the  use  of  the  St.  Clair  Flats'  Canal  on  terms  of  C(piality  with  the  inhabitants 
of  the  United  States,  and  further  engages  to  urge  upon  the  State  Government'^ 


rw>=wi5' 


ssession,  with- 
y  thinks  jn'op- 
I  either  Party 
the  origiir.ils 
each  instance 

months  from 
issioners  sliall 
The  aforesaid 
'  a  vacanc}'  oc- 
ntemphited  in 


THE   TREATY   OF   WASHINGTON. 


2G9 


to  secure  to  the  subjects  of  Her  Eritannic  .Majesty  the  use  of  the  several  State 
canals  connected  witli  tlie  navigati(jii  of  tiie  lakes  or  rivers  traversed  I.y  or  con- 
tiguous to  the  boundary-line  between  the  Possessions  of  the  High  Contracting 
Parties,  on  terms  of  equality  Avith  the  inhabitants  of  the  Uuued  States. 

AuTicLK  xxviir. 

The  navigation  of  Lake  Michigan  shall  also,  for  the  term  of  years  mentioned 
in  Article  XXXIII.  of  this  Treaty,  be  free  and  open  for  the  purposes  of  com- 
merce to  the  subjects  of  Her  Britannic  IMajcsty,  subject  to  any  laws  and  reg- 
ulations of  the  United  States  or  of  the  States  bordering  thereon  not  inconsisl- 
ent  with  such  privilege  of  free  navigation. 


ict  minutes  or 
ipoint  and  em- 
ist  them  in  the 

imissioner  and 
)  Governments 


5cending,  from 
L  tlic  boundary 
er  rsmain  free 
ted  States,  sub- 
lion  of  Canada, 

ascending  and 
nd  open  for  the 
and  to  the  cit- 
'  either  country 
ee  navigation. 


on  the  Govern- 
}  United  States 
linion  on  tenns 
crnment  ut  tht 
;sty  shall  enjoy 
the  inliabitants 
e  Governments 


Article  XXIX. 
^  It  is  agreed  that,  for  the  tern,  of  years  mentioned  in  Article  XXXIII.  of  this 
Treaty,  goods,  wares,  or  merchandise  arriving  at  the  ports  of  New  York,  Eos- 
ton,  and  Portland,  and  any  other  ports  in  the  United  States  which  have  been  or 
may,  from  time  to  time,  be  specially  designated  by  the  President  of  the  United 
States,  and  destined  for  Her  Pritannic  .Majesty's  Possessions  in  North  Ameri- 
ca, may  be  entered  at  the  proper  custom-house  and  conveved  in  transit,  with- 
out the  payment  of  duties,  through  the  territory  of  the  United  States,  under  such 
rules,  regulations,  and  conditions  for  the  protection  of  the  revenue  as  the  Gov- 
ernment of  the  T'nited  States  may  from  time  to  time  prescribe ;  and.  under  like 
rules,  regulations,  and  conditions,  goods,  wares,  or  merchandise  may  bo  con- 
veyed m  transit,  without  the  payment  of  duties,  from  such  Possessions  throu-h 
the  territory  of  the  United  States  for  export  from  Uie  said  ports  of  the  United 
States. 

It  is  further  agreed  that,  for  the  like  period,  goods,  wares,  or  merchandise 
arriving  at  any  of  the  ports  of  Her  P;  itannic  Majesty's  Possessions  in  North 
America,  and  destine  d  for  the  United  States,  may  be  entered  at  the  proper  cus- 
tom-house and  conveyed  in  transit,  without  the  payment  of  duties,  through  the 
said  Possessions,  under  such  rules  and  regulations  and  conditions  for  the  pro- 
tection of  the  revenue  as  the  Governments  of  the  said  Possessions  may  from 
time  to  time  prescril,e ;  and,  under  like  rules,  regulations,  and  conditions,  goods 
wares,  or  merchandise  may  bo  conveyed  in  transit,  without  pavment  of  duties, 
from  the  United  States  through  the  said  Possessions  to  other  places  in  the 
United  States,  or  for  export  from  ports  in  the  said  Possessions. 

AUTICLE   XXX. 

Tt  is  agreed  that,  for  the  term  of  years  mentioned  in  Article  .XXIII.  of 
thii  Treaty,  subjects  of  Her  Prita-inic  lAIajesty  may  carry  in  British  vessels, 
w..  lout  payment  of  duty,  goods,  Mares,  or  merchandise  from  one  port  or  place 


JS^ 


11 


1.:- 


270 


APPENDIX. 


wu  un  the  terntory  of  the  United  States  upon  the  St.  Lawrence,  the  Great 
Lakes,  and  the  nvers  connecting  the  same,  to  another  ],ort  or  j.hice  within  tlte 
orruory  of  the  I  nUcd  States  as  aforesai.l :  Provided,  that  a  portion  of  such 
transportation  is  made  through  the  J)o.ninion  of  fanada  hy  kn.l  cania^^e  and 
>n  '-;k1,  under  such  rules  and  regulations  as  may  he  agreed  upon  l^tween 
t^he^(_.overnment  of  Her  JJritannic  Majesty  and  the  Government  of  the  United 

Citizens  of  the  United  States  may  for  the  like  period  carrv  in  United  States 
vessels,  without  payment  of  d.Uy,  goods,  wares,  or  merchandise  frotn  one  port 
or  place  wulun  the  Possessions  of  Her  Britannic  Majesty  in  North  America  to 
another  port  or  place  within  the  said  Possessions:  Provided,  that  a  portion  of 
s.ich  transjH.rtation  is  made  through  tlie  territory  of  the  United  States  hv  l.nd 
carnage  and  in  bond,  under  such  rules  and  regulations  as  mav  he  agree.l  upon 
hetween  the  Governtnent  of  the  U.nted  States  and  the  Government  of  Her  L- 
tannic  Majesty. 

The  Government  of  the  United  States  further  engages  not  to  impose  any  ex- 
port duties^on  goods,  wares,  or  merchandise  earned  under  this  article  througii  the 
ern  ory  of  the  Ln.ted  States ;  and  Her  Majesty's  Government  engages  to  urge 
die  1  arhameut  of  the  Dominion  of  Canada  and  the  Legislatures  of  the  other 
Colonies  not  to  impose  any  export  duties  on  goods,  wares,  or  merchandise  car- 
ried under  this  article;  and  the  Government  of  the  United  States  mav  in  cise 
such  export  duties  are  imposed  hy  the  Dominion  of  Canada,  suspend,  du'ring  the 
I.eriod  that  such  duties  are  imposed,  the  right  of  can-ying  granted  under  this 
article  in  favor  of  the  subjects  of  Her  IJritannic  Majesty. 

The  Government  of  the  United  State<  may  suspend  the  right  of  carrying 
granted  in  favor  of  the  subjects  of  Her  Jlritannic  Majesty  under  this  artici;  in 
case  the  Dominion  of  Canada  slioidd  at  .iny  time  deprive  the  citizens  of  the 
Ln.ted  States  of  the  use  of  the  canals  in  the  said  Dcmiinion  on  terms  of  e.nial- 
ity  with  the  inhabitants  of  the  Dominion,  as  provided  in  Article  XXVIL 

Article  XXXL 
The  Government  of  Her  Britannic  Majesty  further  engages  to  urge  upon  the 
I  arhameut  of  the  Dominion  of  Canada  and  the  Legislature  of  New  Brunswick 
that  no  export  duty,  or  other  duty,  shall  be  levied  on  lumber  or  timl,er  of  any 
kind  cut  on  that  portion  of  thei\merican  territory  in  the  State  of  .Maine  watered 
by  the  Biver  St.  John  and  its  tributaries,  and  floated  down  that  river  to  the 
sea,  when  the  same  is  shipped  to  the  United  States  from  the  Province  of  New 
Brunswick.     And,  in  case  any  such  exj.ort  or  other  duty  continues  to  be  levied 
after  the  expiration  of  one  year  from  the  date  of  the  exchange  of  tlie  ratifica- 
tions of  this  Treaty,  it  is  agreed  that  the  Government  of  the  United  States  may 
suspend  tlie  right  of  carrying  hereinbefore  granted  under  Article  aXX  of  this 
Treaty  for  such  period  as  such  c-xjiort  or  other  duty  may  be  levied. 


■BwawBEweaiaaw 


THE   TREATY   OF   WASHINGTON. 


ice,  tlio  Great 
lice  within  tlie 
)rtioii  of  such 
t  cani:i<,^c  and 
njioii  lietweeu 
of  tlic  United 

r'liitcd  States 
rum  one  port 
h  America  to 

a  portion  of 
itates  hy  land 

ay  reed  njtoa 
t  of  Her  Jiri- 

pose  any  ex- 
-'  tlirougii  tlic 
jages  to  urge 
of  tlic  other 
handise  car- 
may,  in  case 
:1, during  the 
I  under  this 

of  cari-ying 
is  article,  in 
izens  of  the 
lis  of  equal- 
^VII. 


?c  upon  the 
Brunswick 
nl)er  of  any 
ine  watered 
iver  to  the 
lice  of  Xew 
to  he  levied 
he  ratifica- 
States  may 
XX.  of  this 


271 


Article  XXXII. 
It  is  farther  agreed  that  the  provisions  and  stipulations  of  Artic.les  XVIII 
0  XXV.  of  this  Ireaty,  inclusive,  shall  extend  to  the  Colony  of  Newfoundland 
so  na  as  they  are  applicable.     But  if  the  Imperial  Parliament,  the  Legislature 

Colony  of  Newfoundland  m  their  laws  enacted  for  carrying  the  foregoing  arti- 
cles nno  effect,  then  this  article  shall  be  of  no  eftect ;  hut  the  omissi.^,  to  niake 
provision    y  law  to  give  it  effect,  by  either  of  the  legislative  bodies  afbresa  d 
shall  not  in  any  way  impair  any  other  articles  of  this  Treaty. 

Article  XXXIII, 

this  Iieaty  shall  take  eflect  as  soon  as  the  laws  required  to  carrv  them  into 
operation  shall  have  been  passed  by  the  Imperial  Parliament  of  Gr'eat  Hrit^^ 
by  the  1  arhament  of  Canada,  and  by  the  Legislature  of  Prince  Edward's  M- 
and  on  the  one  hand,  and  by  the  Congress  of  the  United  States  on  the  other. 
Such  assent  having  been  given,  tlie  said  articles  shall  remain  in  force  for  the 
period  often  years  from  the  date  at  wliicii  they  may  come  into  operation;  and 
further  until  the  expiration  of  two  years  after  either  of  the  High  Contracting 
larties  shall  have  given  notice  to  the  other  of  its  wish  to  terminate  the  same- 
oacii  of  the  Iligii  Contracting  Parties  being  at  liberty  to  give  such  notice  to  the 
other  at  the  end  of  the  said  period  of  ten  years  or  at  any  time  afterward. 

Article  XXXIV. 
Whereas  it  was  stipulated  by  Article  I.  of  the  Treatv  conclndod  at  Wa^hin- 
ton  on  the  !.5th  of  June,  184G,  between  the  United  States  and  Her  Hritannk^ 
Majesty,  that  the  line  of  boundary  between  the  territories  of  the  United  States 
and  those  of  Her  Britannic  Majesty,  from  the  point  on  the  fortv-ninth  parallel 
of  north  latitude  up  to  which  it  had  already  been  ascertained, 'should  be  con- 
tinued westward  along  the  said  i.arallel  of  nortli  latitude  "to  the  middle  of  the 
channel  which  separates  the  continent  from  Vancouver's  Island,  and  thence 
soutlierly,  through  the  middle  of  the  said  channel  and  of  Fuca  Straits,  to  tiie 
Pacific  Ocean;"  and  whereas  tlie  Commissioners  appointed  bv  the  two  High 
Contracting  Parties  to  determine  that  portion  of  the  boundary  which  runs 
soutlierly  through  the  middle  of  the  channel  aforesaid  were  unable  to  agree 
upon  the  same  ;  and  whereas  the  Government  of  Her  Britannic  Majesty  claims 
that  such  boundary-line  should,  under  the  terms  of  the  Treaty  above  recited 
be  run  through  the  Hosario  Straits,  and  the  Government  of  the  United  States 
claims  that  it  should  be  run  through  the  Canal  de  Haro,  it  is  agreed  that  the 
respective  claims  of  the  Government  of  the  U'nited  States  and  of  the  Govern- 
ment of  Her  Britannic  Majesty  shall  be  submitted  to  the  arbitration  and  award 


272 


APPENDIX. 


of  His  Miijosty  flic  Emperor  of  Germanv,  who,  Imving  regard  to  the  above- 
rnentiomul  iirticlo  of  tlio  said  Treaty,  sliail  deciile  thereupon,  finally  and  with- 
out ajijieal,  uliich  of  those  claims  is  most  in  uccordaucc  with  the  true  interpre- 
tation of  the  Treaty  of  June  lo,  1S4G. 


Articlk  XXXV. 

The  award  of  Ilis  Majesty  the  Emperor  of  Germany  shall  l)e  considered  as 
absolutely  final  and  conclusive;  and  full  effect  shall  be  given  to  such  award 
without  any  objection,  evasion,  or  delay  whatsoever.  Such  decision  shall  be 
given  in  writing  and  dated  ;  it  shall  be  in  whatsoever  form  His  ^Majesty  may 
choose  to  adi)pt ;  it  shall  be  delivered  to  the  Hei)resentativcs  or  other  public 
Agents  of  the  United  States  and  of  Great  Britain,  resjiectively,  who  may  be  actu- 
ally at  Herlin,  and  shall  be  considered  as  ojierytive  from  the  day  of  the  date  of 
the  delivery  thereof. 

AUTICLK  XXXVI. 

The  written  or  printed  case  of  each  of  the  two  Parties,  accom[)anlcd  by  the 
evidence  f)nered  in  stipi)ort  of  the  same,  shall  be  laid  before  Ilis  Majesty  the 
Emperor  of  Germany  within  six  months  from  the  date  of  the  exchange  of  the 
ratifications  of  this  T'reaty,  and  a  copy  of  such  case  and  evidence  shall  be  com- 
municated by  each  Party  to  the  other,  tbnjugh  their  respective  Kepresentalives 
at  I'erliii. 

The  High  rontracting  Parties  may  include  in  the  evidence  to  1)C  considered 
by  the  Arbitrator  such  documents,  ofbcial  correspondence,  and  other  oflicial  or 
]iulilic  statements  bearing  on  the  subject  of  the  reference  as  they  may  consider 
necessary  to  the  support  of  their  respective  cases. 

After  the  written  or  printed  case  shall  have  been  communicated  by  each 
Party  to  the  other,  each  Party  shall  have  the  power  of  drawing  u\>  and  laying 
before  the  Arbitrator  a  second  and  definitive  statement,  if  it  think  fit  to  do  so, 
in  reply  to  the  case  of  the  other  jiarty  so  communicated,  which  definitive  state- 
ment shall  be  so  laid  before  the  Arbitrator,  and  also  be  mutually  communicated 
in  the  same  manner  as  aforesaid,  by  each  Party  to  the  other,  within  six  months 
from  the  date  of  laying  the  first  statement  of  the  case  before  the  Arbitrator. 


Article  XXXVII. 

If,  in  the  case  submitted  to  the  Arbitrator,  either  Party  shall  specify  or  allude 
to  any  report  or  document  in  its  own  exclusive  possession  without  annexing  a 
copy,  such  Party  shall  be  bound,  if  the  other  Party  thinks  jiroper  to  apjdy  for 
it,  to  furnish  that  Party  with  a  copy  thereof,  and  either  Party  may  call  upon 
the  other,  through  the  Arbitrator,  to  produce  the  originals  or  certified  copies 
of  any  papers  adduced  as  evidence,  giving  in  each  instance  such  reasonable  no- 
tice as  the  Arbitrator  may  reipiire.     And  if  the  Arbitrator  should  desire  fur- 


Si. 


1.1  to  the  above- 
iiially  iiiitl  with- 
le  true  iutcqji-e- 


TIIE   TREATY  OF  WASHINGTON. 


9'7Q 


ther  e,„eidation  or  evidence  with  regard  to  any  point  contained  in  the  state- 

.0  .hall  he  at  hherty  to  hear  one  counsel  or  agent  for  each  I'urtv,  in  relati,^u  to 
any  n.atter,  and  at  such  time,  and  in  such  manner,  as  he  may  thiuk  fit. 


c  considered  as 
to  sucli  award 
ecision  shall  be 
is  IVrajesty  may 
or  other  jmblic 
10  may  be  actu- 
■  of  the  date  of 


npanied  by  tlie 
is  Afajesty  the 
'vcliange  of  tlie 
!  shall  lie  com- 
keprescntatives 

be  considered 

tlior  oflicial  or 

may  consider 

:ated  by  each 
up  and  laying 
\<  tit  to  do  so, 
ifinitivc  state- 
ommunicated 
in  six  months 
Lrbitrator. 


cify  or  allude 
c  annexing  a 
to  ap])ly  for 
ay  call  upon 
•tified  C()j)ies 
asonablo  no- 
i  desire  fur- 


AniicLE  XXXVIII. 

G^^'ZTn^^  "  '*'"  ^""'^  ""'''''  "'  ^"«  ^"''^^  States  and  of 
rJT  '  '''^'"^''^''^y^  ■'^'''^l'  ^'^  considered  as  the  Agents  of  their 

respectu-e  Governments  to  conduct  their  cases  before  the  Arbitrator,  who    11 
be  requested  to  address  all  his  communications,  and  give  all  his  notices  to  su 
Representatives  or  other  public  Agents,  who  shall 'represent  the     res'     ti 
Governments  generally  in  all  matters  connected  with  the  arbitration'       ' 

Article  XXXIX. 

It  shall  be  competent  to  the  Arbitrator  to  proceed  in  the  said  arbitration  and 

11  ma  ters  relating  thereto,  as  and  when  he  shall  see  fit,  either  in  p  "  r;rt! 

a  person  or  persons  named  by  him  for  that  purpose,  either  in  the  presence  or 

aw  ^euher  or  both  Agents,  and  either  orally  or  L,  written  d' c:^::  ^ 

Article  XL. 
Tl,e  AAitrator  may,  if  l,o  think  lit,  appoint  a  sccrotarr  or  cleA  for  ,1,^ 

wrati^L,  ::;o:::\::':^::r::;^z:'"'' """ "-  -^^  - 

Article  XLL 
Article  XLII. 
Article  XLIII.   — ;~^ 

s.a^:o'f 'rri^:;^;*"':::  ;;;f  ;.""«^  ^  *=  "re..,™.  „f  „„  ,-„:„,  • 

ica,  D^  and  AMth  the  advice  and  consent  of  tho  Senate  thereof, 


I:. 


!r:i 


(" 


274 


AITENDIX. 


and  by  Ilcr  Urilannic  Majesty ;  nnd  the  ratinoations  shall  l)e  exchanged  cither 
at  Washington  or  at  London  within  six  months  from  the  date  hereof,  or  earlier 
if  possible. 

In  faith  whereof,  we,  the  respective  I'lenipotcntiaries,  have  signed  this  Treaty 
and  have  hereunto  affixed  our  seals. 

Done  in  duplicate  at  Washington  the  eighth  day  of  May,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy-one. 


[L.  8.] 
[L.  8.] 
[L.  8.] 

[r-.  8.] 

[L.  8.] 
[L.  8.] 
[L.  S.] 

[l.  s.] 

[L.  S.] 
[L.  S.] 


ILvMiLTON  Fish. 
lionr.  C.  ScHENCK. 
Samukl  Nklson. 

ElJENEZEn   HOCKWOOD  IIoAn. 

Geo.  IL  Williaais. 
De  Gkey  &  Ihvoy. 

SXAFFOKI)   11.   NoKTHCOTE. 

Edwd.  Thornton. 
John  A.  MAcnoNAi.n. 

MOUNTAGUB   BekNAKD. 


And  whereas  the  said  Treaty  has  been  duly  ratified  on  both  parts,  and  the 
respective  ratifications  of  the  same  were  exchanged  in  the  city  of  London,  on 
the  seventeenth  day  of  June,  1871,  by  Kobert  C.  Schenck,  Envoy  Extraordinary 
and  Minister  Plenipotentiary  of  the  United  States,  and  Earl  Granville,  Her 
Majesty's  Principal  Secretary-  of  State  for  Foreign  Atlairs,  on  the  part  of  their 
respective  Governments : 

Now,  therefore,  be  it  known  that  I,  Ulysses  S.  Guant,  President  of  the 
United  States  of  America,  have  caused  the  said  Treaty  to  be  made  public,  (o 
the  end.that  the  same,  and  every  clause  and  article  thereof,  may  be  observed 
and  fulfilled  with  good  faith  by  the  United  States  and  the  citizens  thereof. 

In  witness  wL  -reof,  I  have  hereunto  set  my  hand  and  caused  the  seal  of  the 
United  States  to  be  aflSxed. 

Done  at  the  City  of  Washington  this  fourth  day  of  July,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  seventy-one,  and  of  the  Inde- 


[SEAL.J 


pendence  of  the  United  States  the  ninety-sixth 


By  the  President : 

Hamilton  Fish, 

Secretary  of  State, 


U.  S.  Grant. 


THE  DECISION  AND  AWAUD. 


wchangcd  cither 
crcof,  or  earlier 

ncd  this  Treaty 

the  year  of  our 


'OOD  lIoAn. 

s. 

v. 

:thcote. 

AKD. 

parts,  and  the 
uf  London,  on 
Extraordinary 
jranville,  Iler 
5  part  of  tlicir 

isident  of  tlie 
ade  public,  to 
>  be  observed 
1  thereof. 
lie  seal  of  the 

e  year  of  our 
of  the  Indo- 

S.  Grant. 


DECISION  AND  AWARD 

Made  hj  the  Tribunal  of  Arbitration  constituted  by  virtue  of  the  first  Article 
of  the  Treaty  concluded  at  Washington  the  Sth  of  May,  1871,  betioeen  Her 
Majesty  the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland 
and  the  United  States  of  America. 

Her  Britainiic  Majesty  and  the  United  States  of  America  having  agreed  by 
Article  I.  of  the  Treaty  concluded  and  signed  at  Washington  the  8th  of  May, 
1871,  to  refer  all  the  claims  "generically  known  as  the  Alabama  Claims"  to  a 
Tribunal  of  Arbitration  to  bo  composed  of  live  iVi'bitrators,  named: 

One  by  Her  Britannic  Majesty, 

One  by  the  President  of  the  United  States, 

One  by  His  Majesty  the  King  of  Italy, 

One  by  the  President  of  the  Swiss  Confederation, 

One  by  His  Majesty  the  Emperor  of  Brazil ; 
and 

Her  Britannic  Majesty,  the  President  of  the  United  States,  11.  M.  the  King 
of  Italy,  the  President  of  the  Swiss  Confederation,  and  H.  M.  the  Emperor 
of  Brazil,  having  respectively  named  their  Arbitrators,  to  wit : 
Her  Britannic  Majesty : 
Sir  Alexander  James  Edmund  Cockburn,  Bamnet,  a  Member  of  Ilcr  Maj- 
esty's Privy  Council,  Lord  Chief  Justice  of  England ; 
The  President  of  the  United  States  : 
Charles  Francis  Adams,  Esquire  ; 
His  IMiijesty  the  King  of  Italy  : 
His  Excellency  Count  Frederic  Sclopis  of  Salerano,  a  Knight  of  the  Order 
of  the  Annunciata,  Minister  of  State,  Senator  of  the  Kingdom  of  Italy  • 
The  President  of  the  Swiss  Confederation :  ' 

Mr,  James  Stampfli ; 
His  iMajesty  the  Emperor  of  Brazil : 

His  Excellency  Marcos  Antonio  d'Araujo,  Viscount  of  Itajuba,  a  Grandee 
of  the  Empu-e  of  Brazil,  Member  of  the  Council  of  H.  M.  the  Emperor 
of  Brazil,  and  his  Envoy  Extraordinary  and  Minister  Plenipotentiary  in 
France ; 

And  the  five  Arbitrators  above  named  having  assembled  at  Geneva,  in  Switz- 
erland, m  one  of  the  Chambe/s  of  the  HOtel  de  ViUe,  on  the  ir.th  of  December 
1871,  in  conformity  with  the  terras  of  the  Second  Article  of  the  Treaty  of  Wash- 
ington of  the  8th  of  May  of  that  year,  and  having  proceeded  to  the  inspection 


27C 


APPENDIX, 


t:i 


^ 


and  verification  of  their  respective  powers,  whidi  were  foinul  July  aiitheiiticated, 
tlie  Tribunal  of  Arbitration  was  (leclared  duly  organized. 

The  Agents  named  by  each  of  the  High  Contracting  Parties,  by  virtue  of  the 
same  Second  Article,  to  wit : 

For  Her  Uritannic  Majesty  : 

Charles  Stuart  .Vubrey,  Lord  Tenterden,  a  Peer  of  the  United  Kingdom, 
Companion  of  the  Most  Honorable  Order  of  the  IJath,  Assistant  Under- 
Secretary  of  State  for  Foreign  Affairs  ; 

And  for  the  United  States  of  America : 
John  C.  Bancroft  Davis,  Esquire; 
whose  i)owers  were  found  likewise  duly  authenticated,  then  delivered  to  cacl;  of 
the  Arbitrators  the  jirinted  Case  prepared  l)y  each  of  the  two  I'artics,  accompa- 
nied i)y  the  documents,  the  oiHcial  correspondence,  and  other  evidence  cm  which  ' 
each  relied,  in  conformity  with  the  terms  of  the  Third  Article  of  the  said  Treaty. 

In  virtue  of  the  decision  made  by  the  Tribunal  at  its  first  session,  the  Coun- 
ter-Casf ,  and  additional  documents,  corrcs|Hindence,  and  evidence,  refcrreil  to  in 
Artii'le  IV.  of  the  said  Treaty,  were  delivered  by  the  respective  Agents  of  ihe 
two  Parties  to  the  Secretary  of  the  Tribunal  on  the  ir)th  of  April,  1872,  at  the 
Chamber  of  Conference,  at  the  Hotel  de  Villo  of  C;->neva. 

Tiie  Tril)unal,  in  accordance  with  tlie  vfite  of  adjournment  jiassed  at  their 
second  session,  held  on  the  ICth  of  December,  1871,  reassendiled  at  (leneva  on 
the  lath  of  June,  1872;  and  the  Agent  of  each  of  the  Parties  duly  delivered  to 
each  of  the  Arbitrators  and  to  the  Agent  of  the  other  I'arty  the  printed  Argu- 
ment referred  to  in  Article  IV.  of  the  said  Treaty. 

The  Tribunal  having  since  fully  taken  into  their  consideration  tlic  Treaty,  and 
also  the  cases,  counter-cases,  documents,  evidence,  and  ai'guments,  and  likewise 
all  other  communications  made  to  them  by  the  two  PiU'ties  during  the  progress 
of  their  sittings,  and  having  impartially  examined  the  same. 

Has  arrived  at  the  decision  emlxwlicd  in  the  present  Award : 

Whereas,  having  regard  to  the  Sixth  and  Seventh  Articles  of  the  said  Treaty, 
the  Arbitrators  are  bound  under  the  terms  of  the  said  Sixth  Article,  ''  in  decid- 
ing the  matters  submitted  to  them,  to  be  governed  l)y  the  three  IJules  therein 
specified,  and  by  such  principles  of  International  Law  not  inconsistent  there- 
with as  the  Arbitrators  shall  determine  to  have  been  applicable  to  the  case;" 

And  whereas  the  "due  diligence"  referred  to  in  the  first  and  third  of  the 
said  Rules  ought  to  be  exercised  by  neutral  Governments  in  exact  proportion 
to  the  risks  to  which  either  of  the  belligerents  may  be  exposed  Axim  a  failure  to 
fulfill  the  obligations  of  neutrality  on  their  part ; 

And  whereas  the  circumstances  out  of  which  the  facts  constituting  the  sub- 
ject-matter of  the  present  controversy  arose  were  of  a  nature  to  call  for  the 
exercise  on  the  part  of  Her  Britannic  Majesty's  Government  of  all  possible  so- 
licitude for  the  observance  of  the  rights  and  the  duties  involved  in  the  Procla- 
mation of  Neutrality  issued  by  Her  Majesty  on  the  13th  day  of  ]\lay,  ISO  I  ; 

And  whereas  the  effects  of  a  violation  of  neutrality  committed  by  means  of 


THE   DECISION   AND   AWAIID. 


277 


xiitlienticated, 
.'  virtue  of  the 


ed  Kingdom, 
istunt  Uiider- 


ed  to  eacli  of 
ics,  iiccoinj)a- 
!nce  on  wiiicii 
!  said  Treaty. 
)I1,  tlio  Coiui- 
rctcned  tu  in 
Agents  of  I  he 
,  IM7L',  at  tlie 

ssed  at  tlieir 
U  (icnova  on 
•  delivered  to 
rill  ted  Argu- 

."■reaty,  and 

and  lii^ewise 

le  progress 


^aid  Treaty, 
in  dci'id- 
ilos  tiiercin 

^tent  tliere- 

lie  ease;" 
lird  of  the 
proportion 

a  failure  to 

ig  tlie  sub- 
ill  for  the 

lossihle  so- 
le I'rochi- 

]8r.l; 
means  of 


the  construction,  erjuipmcnt,  and  armament  of  u  vessel  are  not  done  away  witli 
by  any  coniniission  which  tlie  (iovernineiit  of  the  liclligerciit  I'ower  henerited 
by  the  violation  of  neutrality  may  afterward  have  granted  to  that  vessel :  and 
the  ultimate  step,  by  which  the  otVense  is  comjileted,  can  not  lie  admissible  as 
a  ground  for  tlie  absolution  of  the  ofl'ender;  nor  can  the  consummation  of  his 
fraud  become  the  means  of  establishing  his  innocence; 

And  wherens  the  privilege  of  exterritoriality  ai'corded  to  vessels  of  war  has 
been  admitted  into  the  law  of  nations,  not  as  an  absolute  right,  but  solely  as  a 
proceeding  founded  on  the  princijile  of  courtesy  and  mutual  deference  between 
different  nations,  and  therefore  can  never  be  ajipealed  to  for  the  protection  of 
acts  done  in  violation  of  neutrality  ; 

And  whereas  the  absence  of  a  jirevious  notice  can  not  be  regarded  as  a  fail- 
ure in  any  consideration  required  by  tlie  law  of  nations  in  those  cases  in  which 
a  vessel  carries  with  it  its  own  condemnation  ; 

And  whereas,  in  order  to  iin])art  to  any  supjilies  of  coal  a  character  incon- 
sistent with  the  second  Kule,  luoliiltiting  the  use  of  neutral  ports  or  waters  as  a 
base  of  naval  operations  for  u  belligerent,  it  is  necessary  that  the  said  supplies 
should  be  connected  with  special  circumstances  of  time,  of  persons,  or  of  jilace, 
which  may  combine  to  give  them  such  character; 

And  whereas,  with  respect  to  the  vessel  called  the  A/uhaiud,  it  clearly  results 
from  all  the  facts  relative  to  the  construction  of  the  snip  at  first  desigiiatetl  liy 
the  "No.  2'.)()"'  in  the  port  of  Liverpool,  and  its  equijjment  and  armament  in 
the  vicinity  of  Terceira,  throiigii  the  agency  of  the  vessels  calleil  the  Af/n'j)])i,i(i 
and  the  Bahmim  disjiatched  from  Great  Britain  to  that  end,  that  the  Hritish 
Government  failed  to  use  due  diligcncf>  in  the  jierformance  of  its  neutral  olili- 
gations  ;  and  especially  that  it  omitted,  notwithstanding  the  warnings  and  ofli- 
cial  representations  made  by  the  diplomatic  agents  of  the  United  States  during 
the  construction  of  the  said  "No.  2'Ji),"  to  take  in  due  time  any  effective  meas- 
ures of  prevention,  and  that  those  orders  which  it  did  gi\  e  at  last  for  the  deten- 
tion of  the  vessel  were  issued  so  late  that  their  execution  was  not  practicable ; 

And  whereas,  after  the  escape  of  that  vessel,  the  measures  taken  for  its  pursuit 
and  arrest  were  so  imjierfect  as  to  lead  to  no  result,  and  therefore  can  not  be  con- 
sidered sufficient  to  release  Great  Britain  from  the  responsibility  already  incurred; 

And  whereas,  in  desi)itc  of  the  violations  of  the  neutrality  of  Great  Britain 
committed  hy  the  "290,"  this  same  vessel,  later  known  as  the  Confederate  cruiser 
Alabama ^\\a.s  on  several  occasions  freely  admitted  into  tlie  ports  of  Colonies  of 
Great  Britain,  instead  of  being  proceeded  against  as  it  ought  to  have  been  in  any 
and  every  port  within  British  jurisdiction  in  which  it  might  have  been  found ; 

And  whereas  the  Government  of  Iler  Britannic  IVfajesty  can  not  justify  itself 
for  a  failure  in  due  diligence  on  the  plea  of  the  insufficiency  of  the  legal  means 
of  action  which  it  possessed  ; 

Four  of  the  Arbitrators,  for  the  reasons  above  assigned,  and  the  fifth  for  rea- 
sons separately  assigned  by  him,  are  of  opinion. 

That  Great  Britain  has  in  this  case  failed,  by  omission,  to  fulfill  the  duties 


w- 


!! 


P 


r 


278 


APPENDIX. 


prescribed  in  the  first  nnd  the  third  of  the  Rules  established  by  the  Sixth  Arti- 
cle of  tlie  'i'roiity  of  Wasliington. 

And  \\  iiereas,  with  respect  to  the  vessel  cidled  the  Florida,  it  results  from 
all  the  facts  relative  to  the  construction  of  the  Oreto  in  the  port  of  Liverpool 
and  to  its  issue  therefrom,  whicli  facts  failed  to  induce  the  Autliorities  in  Great 
Hritain  to  resort  to  measures  adc(|uatc  to  prevent  the  violation  of  tlio  neutrality 
of  tluit  nation,  notwithstanding  the  warnings  and  repeated  representations  of  the 
Agents  of  tlic  United  States,  that  Her  Majesty's  Government  has  failed  to  use 
due  diligence  to  fulfill  the  duties  of  neutrality ; 

And  wiiereas  it  likewise  results  from  ail  the  facts  relative  to  the  stay  of  the 
Orctu  at  Nassau,  to  lier  issue  from  that  jiort,  to  her  enlistment  of  men,  to  her 
supplies,  and  to  her  armament  with  tlie  co-operation  of  the  IJritish  vessel  Prince 
Alfred  at  Green  Cny,  that  there  M'as  negligence  on  the  part  of  the  British  Colo- 
nial Authorities ; 

And  whereas,  notwithstanding  the  violation  of  the  neutrality  of  Great  Britain 
committed  by  the  Oreto,  this  same  vessel,  later  known  as  the  Confederate  cruiser 
Florida,  was  nevertheless  on  several  occasions  freely  admitted  into  the  jwrts  of 
]}ritish  Colonies ; 

Aiul  whereas  the  judicial  acquittal  of  the  Oreto  at  Nassau  can  not  relieve 
Groat  JJritain  from  the  resi)ou><ibiHty  incurred  by  her  under  the  principles  of 
International  Law ;  nor  can  the  fact  of  the  entry  of  the  Florida  into  the  Con- 
federate port  of  Mobile,  and  of  its  stay  there  during  four  months,  extinguish  the 
resi)onsibility  previously  to  that  time  incurred  by  Great  I'rituin : 
For  tliese  reasons, 

The  Tril)unal,  by  a  majority  of  four  voices  to  one,  is  of  opinion. 

That  Great  Britain  has  in  this  case  failed,  by  omission,  to  fulfill  the  duties 
prescribed  in  the  first,  in  the  second,  and  in  the  third  of  the  liules  established 
by  Article  VL  of  the  Treaty  of  Washington. 

And  whereas,  with  respe(  t  to  the  vessel  called  the  Shenandoah,  it  results  from 
all  the  facts  relative  to  the  departure  from  London  of  the  merchant  vessel  the 
Sea  Kitif/,  and  to  the  transformation  of  tiiat  ship  into  a  Confederate  cruiser 
under  the  name  of  the  Shenandoah,  near  the  island  of  Madeira,  tluU  the  Gov- 
ernment of  Her  Britannic  Majesty  is  not  chargeable  with  any  failure,  down  to 
that  date,  in  the  use  of  due  diligence  to  fulfill  the  duties  of  neutrality ; 

But  whereas  it  results  from  all  the  facts  connected  with  the  stay  of  the  Shen- 
andoah at  Melbourne,  and  especially  with  the  augmentation  which  the  British 
Government  itself  admits  to  have  been  clandestinely  cflected  of  her  force  by  the 
enlistment  of  men  within  that  port,  that  there  was  negligence  on  the  part  of  the 
Authorities  at  that  place : 
For  these  reasons, 

The  Tribunal  is  mini  imously  of  opinion, 

That  Great  Britain  has  not  failed,  by  any  act  or  omission,  to  fulfill  any  of 
the  duties  prescribed  by  the  Rules  of  A)  ticle  VI.  in  the  Treaty  of  Washington, 
or  by  the  principles  of  International  Law  not  inconsistent  therewith,  in  respect 


m 


THE   DECLSK^N   AND  AWAUD. 


279 


y  the  Sixth  Arti- 

t,  it  results  from 
>ort  of  Liverpool 
Iiorities  in  Greut 
of  flic  iieiitrality 
mentations  of  tlio 
lias  failed  to  use 

the  stay  of  the 
;  of  men,  to  her 
sh  vessel  Prince 
le  IJritish  Colo- 

f  Great  Britain 
federate  cruiser 
ito  the  ports  of 

?an  not  relievo 
i  princijtles  of 
into  the  Con- 
extinguish  the 


fill  the  duties 
es  established 

t  results  from 
int  vessel  the 
lerate  cruiser 
hat  the  Gov- 
iire,  down  to 

ity; 

of  tlie  S/ien- 

1  the  British 

force  by  the 

3  part  of  the 


ilfiU  any  of 
V^ashington, 
,  ill  respect 


to  the  vessel  called  the  Shrnamlonh,  during  the  period  of  time  anterior  to  her 
entry  into  the  jxM-t  of  Melbourne, 

And  by  a  majority  of  three  to  two  voices,  the  Tribunal  declares  that  Great 
Britain  has  failed,  l)y  omission„to  fulfill  the  duties  prescribed  by  the  second  and 
third  of  the  I{ides  afuicsaid,  in  the  case  of  this  same  vessel,  from  and  after  her  en- 
try into  llobson's  Bay,  and  is  therefore  resitonsible  for  all  acts  committed  by  that 
vessel  after  her  departure  from  Melbourne  on  the  16th  day  of  February,  18Gu, 
And  so  far  as  relates  to  the  vessels  culled 
The  Tusraluosa 
(Tender  to  the  J/a/>a/««), 
The  Clarence, 
The  Tacony,  and 
The  Archer 

('J'entlers  to  the  Florkl(t),  "    ' 

The  Trii)unal  is  unanimously  of  opinion, 

That  such  Tenders  or  auxiliary  vessels,  being  properly  regarded  as  accesso- 
ries, must  necessarily  follow  the  lot  of  their  Principals,  and  be  submitted  to  the 
same  decision  which  ajjpiies  to  them  respectively. 

And  so  far  as  relates  to  the  vessel  called  the  yiVi'n/y^/^'o//, 
The  Tribunal,  by  a  majority  of  three  to  two  voices,  is  of  opinion. 
That  Great  Britain  has  not  failed,  by  any  act  or  omission,  to  fulfill  any  of 
the  duties  prescribed  by  the  three  Kules  of  Article  VI.  in  the  Treaty  of  Wash- 
ington, or  by  the  princijiles  of  International  Law  not  inconsistent  therewith. 
And  so  far  as  relates  to  the  vessels  called 
The  (j'corgia, 
The  Sumter, 
The  Nashville, 
The  Tallahassee,  and 
The  C'ldckamavffa,  respectively. 
The  Tribunal  is  unanimously  of  opinion. 

That  Great  Britain  has  not  failed,  by  any  act  or  omission,  to  fidfill  any  of 
the  duties  prescribed  by  the  three  Bales  of  Article  \l.  in  the  Treaty  of  Wash- 
ington, or  by  the  principles  of  International  Law  not  inconsistent  therewith. 
And  so  far  as  relates  to  the  vessels  called 
The  Sallie, 
The  Jefferson  Davis, 
The  Music, 
The  Boston,  and 
The  V.  11.  Joy,  respectively. 
The  Tribunal  is  unanimously  of  opinion. 

That  they  ought  to  be  excluded  from  consideration  for  want  of  evidence. 
And  whereas,  so  far  as  relates  to  the  particulars  of  the  indemnity  claimed  by 
the  United  States,  the  costs  of  pursuit  of  the  Confederate  cruisers  are  not,  in 
the  judgment  of  the  Tribunal,  properly  distinguishable  from  the  general  ex- 
penses of  the  war  carried  on  by  the  United  States, 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


I.I 


1.25 


IM 


1^ 


M 

2.2 


2:  IAS  iio 


1.8 


1.4  mil  1.6 


V] 


<^ 


/2 


oi 


c'l 


.%  A 


^/. 


%  > 


M 


W*:w 


'/7M 
■W 


S. 


^^ 


V 


^q\' 


\\ 


^<i> 


\ 


6^ 


&- 


280 


Ari'ENDIX. 


The  Trihiiiml  is  tlicreforo  of  opinion,  by  a  majority  of  tliree  to  two  voices, 

'J'li'it  tlicro  is  no  ground  for  awarding  to  the  United  States  any  sun;  by  way 
of  indemnity  under  this  bead. 

And  whereas  prospective  earnings  can  not  prpjjcrly  be  made  the  subject  of 
compensation,  inasmuch  as  they  depend  in  their  nature  upon  future  and  uncer- 
ti.in  contingencies, 

Tiic  Tribunal  is  unanimously  of  opinion, 

That  there  is  no  ground  for  awarding  to  the  United  States  any  sum  by  way 
of  indemnity  under  tiiis  head. 

And  whereas,  in  order  to  arrive  at  an  equitabh;  compensation  for  the  dam- 
ages wiiicli  iiave  been  sustained,  it  is  necessary  to  set  aside  all  double  claims  for 
the  same  losses,  and  all  claims  for  "gross  freights  "  so  far  as  they  exceed  "net 
freights;" 

And  whereas  it  is  just  and  reasonable  to  allow  interest  at  a  reasonable  rate ; 

And  whereas,  in  aixordance  with  the  spirit  and  the  letter  of  the  Treaty  of 
Washington,  it  is  preferable  to  adopt  the  form  of  adjudication  of  a  sum  in  gross, 
rather  than  to  refer  the  subject  of  compensation  for  further  discussion  and  de- 
liberation to  a  Hoard  of  Assessors,  as  provided  by  Article  X.  of  the  said  Treaty  : 

The  Tribunal,  making  use  of  the  authority  conferred  upon  it  by  Article  VII. 
of  the  said  Treaty,  by  a  majority  of  four  voices  to  one,  awards  to  the  United 
States  the  sum  of  fifteen  millions  five  hundred  thousand  Dollars  in  gold  as  the 
indemnity  to  be  paid  by  Great  Britain  to  the  United  States  for  the  satisfaction 
of  all  the  claims  referred  to  the  consideration  of  the  Tribunal,  conformably  to 
the  provisions  contained  in  Article  VII.  of  the  aforesaid  Treaty. 

And,  in  accordance  with  the  terms  of  Article  XI.  of  the  said  Treaty,  the  Tri- 
bunal declares  that  all  the  claims  referred  to  in  the  Treaty  as  submitted  to  the 
Tribunal  are  hereby  fully,  perfectly,  and  finally  settled. 

Furthermore,  it  declares  that  each  and  every  one  of  the  said  claims,  whether 
the  same  may  or  may  not  have  been  presented  to  the  notice  of,  made,  preferred, 
or  laid  before  the  Tribunal,  shall  henceforth  be  considered  and  treated  as  finally 
settled,  barred,  and  inadmissible. 

In  Testimony  whereof  this  present  Decision  and  Award  has  been  made  in 
duplicate,  and  signed  by  the  Arbitrators  who  have  given  their  assent  thereto, 
the  whole  being  in  exact  conformity  with  the  provisions  of  Article  VII.  of  the 
said  Treaty  of  Washington. 

Made  and  concluded  at  the  Hotel  de  Ville  of  Geneva,  in  Switzerland,  the 
14th  day  of  the  month  of  September,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  seventy-two. 

(Signed) 
(Signed) 
(Signed) 
(Signed) 


C.  F.  Adams. 
Fredeuic  Sclopis. 

STiEMPFLI. 

Vicomte  dTiAJCbA. 


two  voices, 
ly  sum  by  way 

the  siibject  of 
"c  and  uncer- 


y  sum  by  way 

for  tlie  dam- 

I'le  claims  for 

exceed  "net 

anable  rate  ; 
le  Treaty  of 
sum  in  gross, 
>si(m  and  de- 
said  Treaty : 
Article  VJI. 
•  the  United 
1  gold  as  tiie 
satisfaction 
iformably  to 

fity,  the  Tri- 
litted  to  the 

ns,  whether 
1,  preferred, 
d  as  finally 

sn  made  in 
nt  thereto, 
^11.  of  the 

irland,  the 
sand  eight 


LOPIS. 


JCliA. 


